IN   THK 


HJPBEME 


OURT  OF  ILLINOIS, 


CKNTUAL  (iHAND  DIVISION. 


,     1  S  T  S  . 


ILLINOIS  CENTRAL  HAIL 
ROAD  COMPANY, 

Appellant. 

THE  PEOPLE  OF  THE 

STATE  OF  ILLINOIS, 

Appellee. 


Appeal  from  Douglas. 


TRUMBULL. 

GEO.  W.  WALL, 

Att'yxfor  Appellant. 


Ka-btrdi,  Vn.,  Tribut,  Do  QiMia,  III 

t 


On  page  14— 5th  lint-  from  bottom,  for  work,  read  risk. 

....  15 — 5th  line  from  bottom,  for  provisions,  read  pro- 
vision. 

....  'iA — 10th  line  from  bottom,  for  purposes,  read  pur- 
pose. 

35 — 5th  line  from  top.  for  laws,  read  Courts. 

27 — 5th  line  from  top.  for  tax,  read  act. 

29— 1st  line,  for  eharter,  read  charters. 

49— 10th  and  *>th  lines  from  top,  for  line,  read  Um. 

...  54 — llth  line  from  top,  for  chatered,  read  chartered. 

56— 10th  line  from  top,  for  the,  read  this. 

—  t>0 — 8th  line  from  bottom,  before  the  word  contracts. 
insert  the  words,  applied  to. 

HO — 4th  line  from  bottom,  for  attainable,  read  ob- 
tainable. 

....      ttti — 6th  line  from  top.  erase  itsjndffed  or. 


lUPEEME 


!OURT  OF  KLLINOIS. 


CENTRAL  GRAND  DIVISION. 


ILLINOIS  CENTRAL  RAIL- 
ROAD COMPANY, 

Appellant, 
vs. 

THE  PEOPLE  OF  THE 
STATE  OF  ILLINOIS, 
Appellee. 


Appeal  from  Douglas. 


BRIEF  FOR  APPELLANT. 

STATEMENT  OF  THE  CASE. 

This  was  an  action  of  debt,  commenced  by  the  At- 
torney General  in  favor  of  appellee  against  the  appellant, 
under  the  provisions  of  an  act  of  the  General  Assembly 
of  the  State  of  Illinois,  entitled  ki  An  Act  to  prevent  ex- 
tortion and  unjust  discrimination  in  rates  charged  for 
"  the  transportation  of  passengers  and  freight  on  Rail- 
"  roads  in  this  State,  and  to  punish  the  same,  and  pre- 
"  scribe  a  mode  of  procedure  and  rules  of  evidence  in 
"  relation  thereto,"  &c.,  approved  May  2d.  1873. 

The  Declaration  is  in  the  usual  form,  demanding  debt 
$100,000.00,  damages  $5,000.00,  and  contains  thirty-one 
counts:  the  seventeenth  is  as  follows: 

*'  And  whereas,  also,  the  said  defendant  heretofore, 
"  to-wit :  on  the  30th  day  of  March,  A.  D.  1874,  to- wit,  at 
"the  county  of  Douglas,  aforesaid,  was  a  Railroad  cor- 


2 

"poration,  and  then  and  there  owning  and  operating  a 
"certain  railroad,  lying  wholly  within  said  State  of  Illi- 
"nois,  and  running  from  said  town  of  Tuscola,  in  said 
"  county  of  Douglas,  to  Chicago,  in  the  county  of  Cook, 
u  in  the  State  of  Illinois,  aforesaid,  and  then  and  there 
"doing  business  as  a  common  carrier  upon  and  over  said 
"line  of  railroad,  and  that  afterwards,  to- wit:  on  the  day 
"  and  year  last  aforesaid,  at  the  county  of  Douglas, 
"aforesaid,  the  said  defendant,  as  such  common  carrier, 
"  at  the  special  instance  and  request  of  John  M.  Maris, 
"carried  and  transported  for  said  John  M.  Maris,  from 
"Chicago  aforesaid  to  Tuscola  aforesaid,  upon  and  over 
"said  railroad,  certain  other  goods,  wares  and  merchan- 
"  dise,  to- wit:  seventy  barrels  of  salt,  of  a  certain  weight, 
"to-wit:  of  the  weight  in  all  of  twenty  thousand  pounds, 
"of  the  goods  and  chattels  of  said  John  M.  Maris,  then 
"and  there  being,  and  that  said  defendant  afterwards, 
"to- wit:  on  the  day  and  year  last  aforesaid,  at  the  county 
"of  Douglas,  aforesaid,  charged,  collected,  demanded 
"and  received  of  and  from  said  John  M.  Maris,  as  and 
"for  said  defendant's  toll  and  compensation  for  the  said 
"  carriage  and  transportation  of  said  last  mentioned 
"  goqtjs.  wares  and  merchandise,  upon  and  over  said  rail- 
"road,  from  said  Chicago  to  said  Tuscola,  in  manner 
"  aforesaid,  a  large  sum  of  money,  to-wit :  the  sum  of 
"twenty-eight  dollars  and  thirty-five  cents,  and  that 
"  said  mentioned  sum  of  money  so  charged,  collected, 
"demanded  and  received,  by  said  defendant,  of  and  from 
"said  John  M.  Maris,  for  the  carriage  and  transportation 


"  of  said  last  mentioned  goods,  wares  and  merchandise, 
"  as  aforesaid,  then  and  there  exceeded  a  fair  and  rea- 
"  sonable  rate  of  toll  and  compensation  for  the  carrying 
"  and  transporation  thereof  in  manner  aforesaid,  in  a 
"  large  sum  of  money,  to-wit:  in  the  sum  of  three  dollars 
"and  fifty-five  cents,  and  was  then  and  there  unjust,  un- 
fair, unreasonable  and  extortionate,  contrary  to  the 
"form  of  the  statute  in  such  case  made  and  provided, 
u  and  against  the  peace  and  dignity  of  the  said  People 
"of  the  State  of  Illinois,  and  thereby,  and  by  force  of 
"said  statute,  an  action  has  accrued  to  the  said  People 
"  of  the  State  of  Illinois  to  demand  and  have  of  and  from 
"the  said  defendant  the  sum  of  Five  Thousand  Dollars, 
"  other  parcel  of  the  said  sum  above  demanded.'"' 

At  the  October  term,  1874,  the  cause  was  submitted 
to  the  Court  without  the  intervention  of  a  jury,  upon  the 
following 

STIPULATION. 

It  is  agreed  between  the  parties  to  this  suit,  that  it 
be  submitted  to  the  Court  for  trial  without  the  interven- 
tion of  a  jury,  and  upon  the  part  of  the  defendant  it  is 
admitted — 

"lst-r-That  the  defendant  charged  and  collected  of 
the  person  named  in  the  17th  count  of  plaintiff's  declara- 
tion, twenty-eight  dollars  and  thirty-five  cents,  for  the 
transportation  of  seventy  barrels  of  salt  from  the  city  of 
Chicago,  Illinois,  to  Tuscola,  in  Douglas  county,  Illinois, 
as  alleged  in  said  17th  count." 


4 

ifc2d — That  the  maximum  amount,  fixed  for  the  trans- 
portation of  freight  of  like  class  and  quantity,  by  the 
Railroad  and  Warehouse  Commissioners  of  the  State  of 
Illinois,  was  before  and  at  the  time  of  such  transporta- 
tion, twenty-four  dollars  and  eighty  cents,  as  established 
by  a  schedule  of  rates  for  the  defendant  made,  sub- 
scribed and  published,  by  said  Commissioners,  and  a 
table  entitled  "Classification  of  freight,"  which  schedule 
of  rates  and  tables  of  "Classification  of  freight"  were 
made  by  said  Commissioners,  and  were  in  force  before 
the  transportation  of  said  salt,  mentioned  in  said  count, 
and  were  made  and  published  in  pursuance  of  an  act  of 
the  General  Assembly  of  the  State  of  Illinois,  approved 
.  May  2d,  A.  D.  1873,  and  in  force  July  1st,  1873,  and  en- 
titled "An  Act  to  prevent  extortion  and  unjust  discrimi- 
nation in  rates  charged  for  the  transportation  of  passen- 
gers and  freight  on  railroads  in  this  State,"  &c.,  and  this 
admission  shall  have  the  like  force  and  effect  as  if  said 
schedule  of  rates  and  tables  of  "Classification  of  freight" 
had  been  read  in  evidence  on  trial." 

"3d — That  the  sum  so  charged  by  the  defendant  for 
such  transportation  in  said  17th  count  mentioned,  ex- 
ceeds the  rate  as  previously  fixed  by  said  Commissioners 
in  the  sum  of  three  dollars  and  fifty-five  cents." 

"4th — It  is  admitted  by  the  plaintiff'  and  defendant  as 
follows:  that  said  Commissioners,  in  pursuance  of  the 
statute,  have  classified  the  different  Railroad  Companies 
of  the  State,  and  have  established  rates  differing  accord- 
ing to  the  classifications  thus  made,  and  in  so  making 


such  classifications,  the  rates  established  for  defendant 
differ  materially  from  the  rates  so  fixed  for  some  of  the 
other  railroads  of  this  State." 

"•5th — That  said  sum  as  charged  and  collected  by  the 
defendant  was  the  rate  of  toll  previously  directed  and 
determined  by  a  by-law  of  the  Board  of  Directors  of 
said  defendant,  in  conformity  with  the  provisions  of  its 
charter,  and  so  continued  to  be  the  rate  so  established 
up  to  and  at  the  time  of  said  shipment." 

U6th — The  printed  charter  of  defendant,  attached 
hereto,  marked  A,  approved  February  10th,  1851,  being 
an  act  passed  by  the  General  Assembly  of  the  State  of 
Illinois,  entitled  "An  Act  to  incorporate  the  Illinois  Cen- 
tral Railroad  Company,"  is  admitted  as  evidence  in  this 
case." 

"7th — The  defendant  claims  the  right  to  direct  and 
determine  its  rates  of  toll  for  the  transportation  of 
freight  and  passengers,  by  virtue  of  the  provisions  of  its 
charter,  and  insists  that  the  act  of  the  General  Assembly 
of  the  State  of  Illinois,  approved  May  2d,  1873,  entitled 
''An  A.ct*to  prevent  extortion  and  unjust  discrimination 
in  rates  charged  for  the  transportation  of  passengers  and 
freight  on  railroads  in  this  State,  and  to  punish  the  same, 
and  prescribe  a  mode  of  procedure  and  rules  of  evidence 
in  relation  thereto,  and  to  repeal  an  act,  entitled 'An  Act 
to  prevent  unjust  discrimination  and  extortion 'in 'the 
rates  to  be  charged  by  the  different  railroads  in  the  State 
for  the  transportation  of  freights  on  said  roads,  approved 
April  7th,  1871,'"  in  so  far  as  it  conflicts  with  the  right 


6 

of  the  defendant  to  direct  and  determine  its  rate  of  toll 
for  the  transportation  of  freight  and  passengers,  is  in 
conflict  with  its  charter,  and  the  Constitution  of  the 
State  of  Illinois,  and  is  repugnant  to  the  Constitution  of 
the  United  States,  in  this,  that  it  impairs  the  obligation 
of  said  contract  entered  into  between  the  defendant  and 
the  State  of  Illinois,  and  is  unconstitutional  and  void.\ 

•''8th— On  the  part  of  the  plaintiff,  it  is  insisted  that 
said  recited  act  is  constitutional  and  valid." 

"If,  upon  the  foregoing  facts,  this  Court  finds  for  the 
plaintiff,  it  is  agreed  that  a  fine  of  $1,000  may  be  assessed 
by  the  Court ;  should  the  Court  find  for  the  defendant, 
the  judgment  is  to  be  entered  accordingly." 

"Either  party  may  appeal  from  the  decision,  finding 
and  judgment  of  the  Court." 

The  charter  of  the  Company  is  set  out  at  large  in 
the  Exhibit  A.     (See  Abstract,  p.  4,  9.) 


The  Court  found  the  issues  for  the  people,  and  as- 
sessed a  fine  of  $1,000.00. 


7         : 

The  defendant  brings  the  Record  to  this  Court. 

I. 

The  Declaration  is  fatally  defective,  and  the  judgment  must  be 
reversed  for  this  reason- 
There  are  thirty-one  counts  in  the  Declaration,  of 
which  the  first  thirty  are  like  the  17th,  which  is  set  out 
in  full  above.  The  31st  count  is  for  unjust  discrimina- 
tion. 

Under  the  authority  of  the  case  of  C.  B.  &  Q.  R.  R. 
Co.  vs.  The  People,  &c..  reported  in  Chicago  Legal  News, 
Vol.  VIII,  page  59,  we  say  the  17th  count  is  wholly  in- 
sufficient, because  it  does  not  aver  that  the  Board  of 
Commissioners  had  prepared  and  published  schedules 
for  the  various  railroads  in  this  State,  and  that  the  rate 
charged  by  defendant  was  in  excess  of  the  rate  fixed  by 
such  schedules  for  such  service  on  defendants  road. 

This  averment  is  necessary,  in  order  to  bring  the 
defendant  within  the  operation  of  the  act,  for  in  the  lan- 
guage of  the  Court  in  the  case  above  cited,  "  a  disregard 
of  the  schedule  of  rates  prepared  by  the  Railroad  and 
Warehouse  Commissioners,  is  a  necessary  element  of 
the  offense  against  which  the  statute  is  directed;  that  is, 
the  charging  more  than  the  maximum  rates  fixed  by 
said  Board  of  CommissioneJs,  which  makes  the  Company 
guilty  of  extortion  under  the  statute,  within  its  true  in- 
tent and  meaning.*' 

The  last  count,  the  31st,  was  bad  on  its  face  because 
the  amounts  laid  did  not  agree  with  the  rate  per  hun- 


I 

dred  pounds  alleged,  there  being  a  patent  error  in  the 
computation,  and  for  the  much  more  important  reason 
that  there  was  nothing  to  show  why  different  rates 
might  not  have  been  charged  upon  the  supposed  ship- 
ments, the  shipments  being  of  different  quantities,  there 
not  being,  in  fact,  ANY  discrimination  averred,  either 
just  or  unjust,  between  shipments  of  ua  like  quantity 
of  the  same  class  "  of  freight.  Vide  the  case  above  cited. 

But  whether  this  count  be  good  or  bad,  there  was 
no  evidence  offered  under  it.  The  17th  was  the  only 
count  under  which  the  evidence  offered  could  be  con- 
sidered, and  if  it  k'is  so  defective  that  it  will  not  sustain 
"a  judgment,  advantage  may  be  taken  of  the  defect  in 
"arrest  of  judgment  or  an  error,  although  a  good  plea 
."might  have  been  interposed/' 

Smith  vs.  Curry,  16  111.  147. 

Brawner  vs.  Lomax,  23  111.  496. 

Scholfield  vs.  Settley,  31  111.  515. 

Wilson  vs.  Myrick,  26  111.  35. 

The  People  vs.  Cloud,  50  III.  439. 

C.  R.  1.  &  P.  R.  R.  vs.  Morris,  26  111.  400. 

This  is  a  doctrine  so  well  settled  that  reference  to 
authorities  seems  wholly  superfluous:  but  the  last  case 
cited  so  perfectly  illustrates  the  rule  as  applicable  here, 
that  the  Court  will  pardon  us  for  referring  to  it. 

It  was  an  action  to  recover,  under  the  statute,  for 
.causing  the  death  of  plaintiff's  intestate,  and  the  dec- 
laration was  held  bad  for  the  reason  that  it  did  not  aver 


9 

the  existence  of  a  widow  and  next  of  kin,  to  whom  the 
damages  could  be  distributed. 

The  objection  was  made  for  the  first  time  in  the  Su- 
preme Court,  (the  defendant  having  filed  a  plea  of  not 
guilty,  upon  which  there  was  an  issue  and  a  trial  in  the 
Circuit  Court)  and  though  the  plaintiff  proved,  upon  the 
trial,  that  the  deceased  did  leave  such  widow  and  next 
of  kin,  tacitly  admitting  the  necessity  of  such  averment, 
yet  the  Court  reversed  the  judgment  for  this  defect  in 
the  declaration. 

The  fact  that  this  case  was  submitted  on  an  agreed 
state  of  facts,  does  not,  in  any  degree,  affect  the  position. 
The  stipulation  was  merely  in  lieu  of  evidence,  the  par- 
ties agreeing,  for  the  sake  of  mutual  convenience,  upon 
certain  facts  which  would  have  appeared  if  witnesses 
had  been  sworn,  and  it  was  agreed  that  if,  upon  "  the 
foregoing  facts,"'  the  Court  should  find  for  plaintiff,  the 
fine  should  be  $1,000.00,  &c.,  it  being  expressly  provided 
that  "either  party  may  appeal  from  the  decision,  finding 
and  judgment  of  the  Court.'"  True,  no  plea  was  filed; 
but  no  advantage  can  be  taken  of  this  fact.  A  plea 
would  have  merely  presented  some  issue  upon  the  dec- 
laration, and  would  have  been  useful  to  the  plaintiff  in 
deciding  how  much  proof  was  necessary.  No  objection 
was  taken  to  the  want  of  a  plea  in  the  Court  below,  and 
none  can  be  taken  here. 

The  question  here  presented,  is  whether  the  case,  as 
made  by  plaintiff  in  his  declaration,  is  sufficient,  no  mat 
ter  how  much  or  how  little  proof  was  offered.     If  the 


defendant  had  not  appeared,  and  a  default  had  been  en- 
tered, still  on  error,  the  sufficiency  of  the  declaration 
might  be  questioned,  and  the  judgment  would  be  set 
aside  if  the  declaration  were  found  substantially  defec- 
tive. Or,  if  a  good  plea  had  been  tiled,  and  ample  evi- 
dence oifered  to  make  out  a  case,  and  the  declaration 
were  found  imperfect,  still  the  Appellate  Court  must  set 
aside  the  judgment. 

A  fortiori,  must  this  be  the  ruling  in  the  case  at  bar, 
where  there  has  been  no  plea,  and  where  the  parties,  by 
agreement,  have  stipulated  that  certain  facts  exist,  this 
stipulation  being  taken  instead  of  sworn  evidence?  At 
most,  it  is  but  a  trial  upon  the  17th  count,  and  all  the 
consequences  are  the  same. 

II. 

The  penalties  provided  in  the  Act  are  excessive. 

The  Constitution  of  U.  S.  Amendment  VIII,  provides 
that  "excessive  fines  shall  not  be  imposed."  The  Consti- 
tution of  Illinois,  1848,  Sec.  14,  Art.  13,  declares  that 
"'All  penalties  shall  be  proportioned  to  the  nature  of 
the  offense."  Same,  1870,  Sec.  11,  Art.  2.  What  is  an 
excessive  fine,  is  perhaps  not  easy  to  define  within  pre- 
cise limits.  The  fine  ought,  in  all  cases,  to  be  in  propor- 
tion to  the  offense,  and  ought  to  be  measured  to  some 
extent,  at  least,  by  the  penalties  imposed  for  other  statu- 
tory or  common  law  offenses. 

For  the  first  violation  of  this  act,  a  fine  of  not  less 
than  $1,000  nor  more  than  $5,000,  is  imposed;  for  the 


11 

second,  not  less  than  $5,000  nor  more  than  $10,000;  for 
the  third,  not  less  than  810,000  nor  more  than  $20,000; 
and  for  every  subsequent  offense,  $25,000.  This  enor- 
mous tine  of  $25,000  is  imposed  for  every  violation  of  the 
provisions  of  the  act  after  the  third.  It  is  not  necessary 
that  there  should  have  been  three  violations  of  the  same 
kind;  that  is,  for  charging  the  same  rate  in  excess  of  a 
given  rate  fixed  by  the  schedule;  but  after  the  third 
conviction  of  any  "  violation  of  the  provisions  of  the 
act,"  the  penalty  must  be  $25,000,  no  matter  how  slight 
or  trilling  may  be  the  excess. 

No  such  a  penalty  has  ever  been  imposed  by  any 
law  of  this  State  for  any  other  offense. 

An  assault  with  a  deadly  weapon,  never  so  brutal, 
is  punishable  by  a  line  of  not  Jess,  than  $25  and  not  ex- 
ceeding $1,000,  or  by  imprisonment  not  exceeding  one 
year.  So  the  adulteration  of  food  and  medicine  is  pun- 
ishable by  a  tine  not  exceeding  $1,000,  or  by  imprison- 
ment not  exceeding  one  year;  false  imprisonment  by  a 
fine  not  exceeding  $500,  or  imprisonment  one  year;  con- 
spiracies by  a  line  not  exceeding  $1,000,  or  imprison- 
ment not  exceeding  three  years;  obstructing  the  course 
of  justice  by  causing  witnesses  to  abscond,  by  a  fine  not 
exceeding  $1,000,  or  imprisonment  not  exceeding  one 
year. 

Such  are  some  of  the  heaviest  fines  provided  in  our 
•  •riminal  code,  it  thus  appearing  that  the  law  makes,  in 
several  instances,  a  fine  of  $1,000  equivalent  to  the  loss 
of  liberty  for  one  year;  while  for  cruelty  to  children. 


12 

aiding  prisoners  to  escape,  destroying  a  dwelling  house, 
and  adultery,  $500  is  the  maximum.  For  keeping  lewd 
houses,  disturbing  religious  worship  or  funeral  proces- 
sions, public  indecency  and  stealing  fruit,  the  maximum 
is  $1,000. 

Many  other  provisions  of  the  criminal  code  might 
be  presented  to  show  what,  in  the  judgment  of  the  Leg- 
islature, based  upon  the  administration  of  criminal  law 
in  this  State  for  more  than  fifty  years,  is  an  adequate 
fine  for  grave  and  serious  offenses  against  public  morals, 
public  decency  and  public  safety. 

Yet  a  railroad  corporation  must  be  mulcted  in  the 
sum  of  $25,000  for  the  heinous  crime  of  charging  ten 
cents  too  much  on  a  car  load  of  grain  from  Chicago 
to  Cairo,  and  it  is  not  provided  in  the  act  that  the  Com- 
missioners appointed  to  fix  the  rates*  are  required  or  ex- 
pected to  bring  to  their  aid  either  experience  or  other 
assistance  in  the  discharge  of  the  almost  impossible  task 
of  fixing  a  just  and  fair  schedule  of  rates  for  the  railroads 
of  this  State,  for  transporting  the  various  articles  of 
freight  that  may  be  brought  to  them  at  different  points, 
for  different  destinations,  in  all  directions,  at  all  seasons 
of  the  year,  and  under  all  the  possible  contingencies  of 
an  ever  changing  traffic. 

Is  it  not  plain  that  these  fines  are  excessive,  wholly 
out  of  proportion  to  the  offense,  the  outgrowth  of  a  reck- 
less, communistic  spirit  that,  fortunately  for  the  peace 
and  good  order  of  society,  is  manifest  only  at  rare  inter- 
vals ! ! 


13 

When  an  enactment  provides  for  so  small  and  trivial 
an  offense,  a  fine  that  exceeds  the  private  fortune 
of  the  great  majority  of  the  most  successful  men.  it  is 
clearly  in  violation  of  the  Constitution,  and  ought  to  be 
condemned  accordingly. 

Such  penalties,  if  enforceable,  would  soon  exhaust 
the  wealthiest  corporations,  while  for  the  small  compa- 
nies, struggling  with  competition,  with  an  undeveloped 
business,  an  unfinished  property  and  a  heavy  load  of 
debt,  the  result  is  speedy  and  complete  destruction.  It 
would  seem  that  these  railroads,  which  have,  more  than 
all  else,  developed  and  made  available  the  vast  natural 
capacities  of  the  country,  must  now  be  made  the  sub- 
jects fcf  spoliation  and  confiscation. 

This  suioidal  course  will  inevitably  and  unfavorably 
react  upon  the  public  interest,  for  it  is  impossible  thus 
to  cripple  such  important  factors  in  material  and  com- 
mercial affairs  without,  at  the  same  time,  injuriously  af- 
fecting every  other  branch  of  industry.  Capital,  alarmed 
at  such  an  exhibition  of  bad  faith,  withdraws  from  other 
enterprises;  public  confidence  is  lost,  and  the  long  train 
of  monetary  disasters  and  business  failures  sufficiently 
attest  the  ruinous  and  dangerous  tendencies  of  such  a 
policy. 

The  stereotyped  complaint  is,  that  these  railroad 
corporations  are  monster  monopolies ;  that  they  have 
grown  powerful  enough  to  oppress  the  public;  that  they 
assume  sovereign  prerogatives,  and  claim  to  be  above 


14 

and  beyond  the  reach  of  the  people,  whose  creatures 
they  are. 

If  these  objections  are  well  founded,  what  follows? 
Shall  the  companies  be  robbed  until  their  possessions 
are  diminished  in  value  to  an  ideal  standard?  If  so,  why 
are  individual  fortunes  exempt  from  the  same  leveling 
process  ?  It  is  indeed  strange,  if  these  corporations, 
whose  object  is  to  serve  the  public,  and  whose  existence 
is  a  continual  competitive  struggle  for  public  patronage, 
and  whose  support  depends  entirely  upon  the  patronage 
of  the  public,  would  long  exercise  a  grinding  monopoly, 
or  long  oppress  their  patrons. 

The  laws  .of  competition  demand  and  supply,  and 
the  sharp  instincts  of  self  interests  may  safely  be  de- 
pended upon  to  correct  any  evils  of  that  sort.  If  they 
assume  sovereign  powers  and  do  not  possess  them,  the 
assumption  will  hurt  nobody,  and  a  supposed  independ- 
ence of  the  people  will  amount  to  nothing  so  long  as 
they  must  depend  upon  the  people  for  their  daily  sup- 
port. Is  not  all  this  mere,  empty  declamation,  and  is 
there  any  practical  reason  why  railroad  corporations 
should  be  singled  out  for  persecution  rather  than  hotels, 
manufactories,  steamship  companies  or  individual  capi- 
talists? There  is  no  department  of  business  where  the 
profit  is  so  small  in  comparison  with  the  work. 

The  record  of  many  of  the  companies  whose  rails 

have  been  laid  in  this  State,  will  show  that  the  origi- 

t  n  al  capital  invested  has  been  lost.     Almost  every  road 

built,  in  Illinois  since  1869,  is  to-day  in  the  hands  of  a 


Receiver,  while  luckless  bondholders  are  anxiously  en- 
quiring for  the  fruits  of  the  supposed  monopoly  and 
oppression  against  which  this  legislation  is  directed, 
and  the  most  fortunate  companies,  whose  lines  have 
been  built  for  fifteen  or  twenty  years,  a  third  or  half 
of  which  period  passed  without  a  dividend,  and  along 
whose  routes  cities  and  towns  have  grown  up,  are  una- 
ble to  pay  their  stockholders  a  dividend  equal  to  the 
lawful  rate  of  interest  upon  loaned  money. 

If  any  one  has  conceived  the  opinion  that  these  cor- 
porations are  beyond  the  reach  of  the  people,  let  him 
observe  the  course  of  litigation,  and  he  will  soon  dis- 
cover that  in  the  Court  House,  if  nowhere  else,  the 
humblest  citizen  has  vastly  the  advantage  over  the 
greatest  and  richest  company. 

If  any  one  has  conceived  the  idea  that  the  promo- 
ters of  railways  have  realized  large  profits  upon  the 
money  invested,  an  examination  of  the  records  will  un- 
deceive him. 

And  no  one  has  denied  that  but  for  these  agencies 
of  progress,  Illinois  would  be  a  generation  behind  her 
present  position  of  wealth,  population  and  power. 

III. 

This  Act  is  in  violation  of  the  chartered  rights  of  the  Company, 
and  is  within  the  provisions  of  the  Federal  Constitution,  which  de 
dares  that  no  State  shall  pass  any  laic  impairing  the  obligation  of 
contracts. 

Const  U.  S.,  Sec.  10,  Art,  1. 

Const,  of  111.,  1848,  Sec.  17,  Art.  13. 
Same,        1870,  Sec,  14,  Art,  2. 


.      16 

Tin's  charter  is  a  contract. 

This  act  impairs  its  obligation. 

Ergo,  the  act  is  void. 

The  history  of  the  Illinois  Central  Railroad  Company 
is  matter  of  public  record. 

Prior  to  1850,  railroads  had  not  been  extensively 
built.  It  had  been  only  twenty  years  since  the  first  one 
(the  Boston  &  Lowell)  had  been  devoted  to  the  general 
business  of  a  common  carrier.  The  building  of  trans- 
continental- lines  was  generally  believed  to  be,  if  not 
impossible,  at  least  impracticable.  In  the  Western  and 
Southern  country,  population  was  sparse,  and  capital 
wholly  wanting.  Illinois  was  still  laboring,  almost  help- 
lessly, under  the  burden  of  a  public  debt,  contracted 
fifteen  years  before  for  the  purpose  of  building  a  general 
system  of  railroads  and  canals. 

Vast  areas  of  tillable  land  within  the  State  were 
practically  worthless,  because  inaccessible, 
i  It  was  definitely  settled,  by  costly  experience,  that 
the  construction  and  operation  of  ''improved  public 
highways"  must  be  left  to  the  skill  and  management  of 
private  enterprise,  and  that  the  State  could  not  success- 
fully maintain  such  undertakings. 

On  the  20th  of  September.  1850,  Congress  passed  an 
act  granting  to  the  States  of  Illinois,  Mississippi  and 
Alabama,  certain  of  the  public  lands  lying  within  those 
States,  to  be  used  in  the  construction  of  a  railroad  from 
Chicago  to  Mobile. 


17 

The  act  contemplated  the  passage  of  a  charter  of  in- 
corporation by  the  State  of  Illinois.  Recognizing  the 
profitable  effect  upon  lands  not  granted,  the  third  sec- 
tion provided  that  the  lands  within  the  limit  of  grant, 
and  not  embraced  by  the  grant  of  alternate  sections, 
should  be  held  at  "  not  less  than  double  the  minimum 
price  of  the  public  lands  when  sold."  thus  securing  the 
Government  against  any  loss.  The  fourth  section  pro- 
vided that  the  road  "should  be  and  remain  a  public 
highway  for  the  use  of  the  Government  of  the  United 
States,  free  of  toll  or  other  charge  upon  the  transporta- 
tion of  any  property  or  troops  of  the  United  States,"  and 
the  sixth  section  provided  that  the  United  States  mail 
should  at  all  times  be  transported  "at  such  price  as  Con- 
gress may  by  law  direct.'1  Otherwise,  the  act  contained 
no  restrictions  or  limitations  upon  the  powers  to  be  con- 
ferred by  the  State  and  exercised  by  the  corporation. 

It  should  be  remembered,  in  this  connection,  that 
by  the  decision  of  the  Supreme  Court  of  the  United 
States,  made  many  years  before,  the  decision  being  ac- 
quiesced in  and  followed  by  the  State  Courts  wherever 
the  question  had  arisen,  and  approved  by  all  text  wri- 
ters, it  was  absolutely  determined  that  the  charter  of  a 
corporation  was  a  contract  binding  upon  the  State,  and 
as  such,  protected  by  the  Federal  Constitution. 

At  the  January  session  of  the  Legislature.  1851,  the 
memorial  of  Robert  Rantoul  and  his  associates,  was  pre- 
sented. It  recited  that  they  had  examined  and  consid- 
ered the  provisions  of  said  act  of  Congress,  and  the 


18 

proposed  route,  and  offered  to  form  a  company  to  build 
the  road  by  a  given  time,  to  make  it  in  all  respects  first- 
class,  and  to  equip  it  ;'in  a  manner  suitable  to  the  busi- 
ness to-be  accommodated  thereby;"  to  pay  to  the  State 
'•annually  —  per  cent,  of  the  gross  earnings  of  said  road, 
without  deduction  or  charge  for  expense,  or  for  any 
other  matter  or  cause,  provided  that  the  State  of  Illinois 
will  grant  to  the  subscribers  a  charter  of  incorporation, 
with  terms  mutually  advantageous,  with  powers  and 
limitations  as  they,  in  their  wisdom,  may  think  fit,  as 
shall  be  accepted  by  said  company,  and  as  will  suffici- 
ently remunerate  the  subscribers  for  the  care,  labor  and 
expenditure  in  that  behalf  incurred,  and  will  enable 
them  to  avail  themselves  of  the  land  donated  by  said 
act  to  raise  funds,  or  some  portion  of  the  funds,  neces- 
sary for  the  construction  of  gaid  road."  Vide  Leg.  Jour- 
nal, 1851. 

The  State,  duly  appreciating  the  importance  of  the 
proposed  undertaking,  passed  the  charter  of  defendant, 
and  it  was  approved  on  the  10th  of  February,  1851. 
Great  care  and  caution  was  shown  in  the  preparation  of 
the  document,  and  after  having  made  provision  for  the 
location  of  the  line,  the  following  was  provided  for  its 
operation : 

"SEC.  8.  The  said  company  shall  have  power  to  make, 
ordain  and  establish  all  such  by-laws,  rules  and  regula- 
tions as  may  be  deemed  expedient  and  necessary  to  ful- 
fill the  purposes  and  carry  into  effect  the  provisions  of 
this  act,  and  for  the  well  ordering,  regulating  and  se- 


19 

curing  the  affairs,  business  and  interests  of  the  company: 
Provided,  that  the  same  be  not  repugnant  to  the  Con- 
stitution of  the  United  States,  or  of  this  State,  or  repug- 
nant to  this  act.  The  Board  of  Directors  shall  have 
power  to  establish  such  rates  of  toll  for  the  conveyance 
of  persons  and  property  upon  the  same  as  they  shall 
from  time  to  time  by  their  by-laws  direct  and  determine, 
and  to  levy  and  collect  the  same,  for  the  use  of  said 
company.  The  transportation  of  persons  and  property ; 
the  width  of  track;  the  construction  of  wheels;  the 
form  and  size  of  cars;  the  weight  of  loads;  and  all 
other  matters  and  things  respecting  the  use  of  said  road, 
and  the  conveyance  of  passengers  and  property,  shall 
be  in  conformity  to  such  rules  and  regulations  as  said 
Board  of  Directors  shall  from  time  to  time  determine. 
Nothing  in  this  act  contained  shall  authorize  said  cor- 
poration to  make  a  location  of  their  track  within  any 
city,  without  the  consent  of  the  common  council  of  said 
city.'' 

That  the  State  might  reap  an  abundant  return  for 
the  privileges  conferred,  the  following  sections  were  in- 
serted : 

"SEC.  18.  In  consideration  of  the  grants,  privileges  and 
franchises  herein  conferred  upon  said  company,  for  the 
purposes  aforesaid,  the  said  company  shall,  on  the  first 
Mondays  of  December  and  June  in  each  year,  pay  into 
the  Treasury  of  the  State  of  Illinois,  live  per  centum  on 
the  gross  or  total  proceeds  or  receipts  or  income,  de- 
rived from  said  road  and  branches,  for  the  six  months 


20 

then  next  preceding.  The  first  payment  of  such  per 
centage  on  the  main  trunk  of  said  road  to  commence 
four  years  from  the  date  of  such  deed  of  trust,  and  on 
the  branches  six  years  from  the  date  aforesaid,  unless 
said  road  and  branches  are  sooner  completed,  then  from 
the  date  of  completion.  And  for  the  purpose  of  ascer- 
taining the  proceeds,  receipts  or  income,  aforesaid,  an 
accurate  account  shall  be  kept  by  said  company,  a  copy 
whereof  shall  be  furnished  to  the  Governor  of  the  State 
of  Illinois,  the  truth  of  which  account  shall  be  verified 
by  the  affidavits  of  the  Treasurer  and  Secretary  of  such 
company.  And  for  the  purpose  of  verifying:  and  ascer- 
taining the  accuracy  of  such  account,  full  power  is 
hereby  vested  in  the  Governor  of  the  State  of  Illinois, 
or  any  other  person  by  law  appointed  to  examine  the 
books  and  papers  of  said  corporation,  and  to  examine, 
under  oath,  the  officers,  agents  and  employees  of  said 
company,  and  other  persons.  And  if  any  person  so  ex- 
amined by  the  Governor  or  other  authority,  shall  know- 
ingly and  wilfully  swear  falsely,  or  if  the  officers  making 
such  affidavits,  shall  knowingly  and  wilfully  swear 
falsely,  every  such  person  shall  be  subject  to  the  pains 

and  penalties  of  perjury." 

****** 

*'SEC.  22.  The  lands  selected  under  said  act  of  Con- 
gress, and  hereby  authorized  to  be  conveyed,  shall  be 
exempt  from  all  taxation  under  the  laws  of  this  State 
until  sold  or  conveyed  by  said  corporation  or  trustees, 
and  the  stock,  property  and  effects  of  said  company 


shall  be  in  like  manner  exempt  from  taxation  for  the 
term  jof  six  years  from  the  passage  of  this  act.  After 
the  expiration  of  said  six  years,  the  stock,  property  and 
assets  belonging  to  said  company  shall  be  listed  by  the 
President,  Secretary,  or  other  proper  officer,  with  the 
Auditor  of  State,  and  an  annual  tax  for  State  purposes 
shall  be  assessed  by  the  Auditor  upon  all  the  property 
and  assets,  of  every  name,  kind  and  description,  belong- 
ing to  said  corporation.  Whenever  the  taxes,  levied  for 
State  purposes,  shall  exceed  three-fourths  of  one  per 
centum  per  annum,  such  excess  shall  be  deducted  from 
the  gross  proceeds  or  income,  herein  required  to  be  paid 
by  said  corporation  to  the  State,  and  the  said  corpora- 
tion is  hereby  exempted  from  all  taxation  of  every  kind, 
except  as  herein  provided  for.  The  revenue  arising  from 
said  taxation,  and  tho  said  five  per  cent,  of  gross  .or  total 
proceeds,  receipts  or  income  aforesaid,  shall  be  paid  into 
the  State  Treasury,  in  money,  and  applied  to  the  pay- 
ment of  interest,  paying  State  indebtedness,  until  the 
extinction  thereof:  Provided,  in  case  the  tive  per  cent, 
provided  to  be  paid  into  the  State  Treasury,  and  the 
State  taxes  be  paid  by  the  corporation,  do  not  amount 
to  seven  per  cent,  of  the  gross  or  total  proceeds,  receipts 
or  income,  then  the  said  company  shall  pay  into  the 
State  Treasury  the  difference,  so  as  to  make  the  whole 
amount  paid  equal  at  least  to  seven  per  cent,  of  the 
gross  receipts  of  said  corporation." 

Section  "11  is  as  follows  :     "This  act  shall  be  deemed 
a  public  act,  and  shall  be  favorably  construed  for  all 


purposes  therein  expressed  and  disclosed  in  all  Courts 
and  places  whatsoever,  and  shall  be  in  force  from  and 
after  its  passage.'" 

The  State  realized  so  handsomely  from  the  seven 
per  cent,  of  the  gross  earnings,  that  in  1870  a  clause  was 
inserted  in  the  Constitution,  by  an  overwhelming  vote 
of  the  people,  prohibiting  the  repeal  or  modification  of 
the  provision.  Vide  Const.,  1870,  "separate  section  Illi- 
nois Central  Railroad." 

It  appears  from  the  public  records  that  the  State  has 
thus  far  received  from  this  source  alone,  the  sum  of 

,  thus  most  amply  fulfilling  the  expectations  of 

the  Legislature  granting  this  contract.  The  National 
Government  quickly  sold  all  its  public  lands  along  the 
line  at  dauble  prices,  and  the  building  of  this  railway 
inaugurated  a  new  era  for  Illinois,  quickening  every 
material  and  business  interest  within  its  broad  domain. 

The  transaction  thus  briefly  sketched  has  every  sub- 
stantial feature  of  a  contract,  made  between  parties 
amply  competent  for  the  purposes. 

This  charter  is  a  contract,  and  is  within  the  protection  of  the 
Federal  Constitution. 

We  quote  from  2  Kent  Com.,  side  page  306 : 
*'A  private  corporation,  whether  civil  or  eleemosyn- 
"ary,  is  a  contract  between  the  Government  and  the 
"corporators :  and  the  Legislature  cannot  repeal,  impair 
"or  alter  the  rights  and  privileges  conferred  by  the  char- 
"ter,  against  the  consent  and  without  the  default  of  the 
"corporation,  judicially  ascertained  and  declared.  This 


"great  principle  of  constitutional  law  was  settled  in  the 
"case  of  Dartmouth  College  vs.  Woodward,  4  Wheat., 
"519,  and  it  had  been  asserted  and  declared  by  the  Su- 
"preme  Court  of  the  United  States  in  several  other  cases 
"antecedent  to  that  occasion."  Citing  Fletcher  vs.  Peck, 
6  Cranch,  88 ;  State  of  New  Jersey  vs.  Wilson,  7  Ibid.. 
164;  Terrett  vs.  Taylor.  9  Ibid.,  43;  Town  of  Pawlet  vs. 
Clark,  Ibid.,  292. 

We  quote  from  Parsons  on  Contracts,  3d  Ed.,  Vol.  2, 
page  683 : 

"Thus  it  has  been  very  solemnly,  and  we  hope  au- 
thoritatively, decided  that  a  corporation  is  a  person 
uwho  may  take  a  grant,  as  well  as  an  individual;  that  a 
"corporation  created  by  the  Legislature,  or  adopted  by 
"the  Legislature,  and  endowed  with  certain  powers  and 
"functions  and  property,  the  Legislature  reserving  no 
"interest  in  what  is  given  them,  and  no  control  over  the 
"succession  of  persons  who  form  the  corporation,  or  over 
"their  functions.  Such  a  corporation  is  a  private  cor- 
poration, to  whom  a  franchise  has  been  given  by  a 
"grant,  which  is  an  executed  contract;  and  that  any 
"deprivation  of  their  property,  or  any  disturbance  or 
"denial  of  their  rights  and  functions,  impairs  the  ob- 
ligation of  the  contract.  And  if  the  Legislature  have 
"reserved  to  themselves  rights  in  the  creation  of  such 
"corporation,  or  in  any  grant  to  them,  these  reservations 
"are  to  be  strictly  followed,  whatever  lies  without  them 
"being  as  if  there  were  no  reservations  whatever."'  See 
Sedgwick  on  Const.  Law.  619. 


24 

Before  the  case  of  Fletcher  vs.  Peck  had  been  de- 
cided, this  doctrine  had  been  announced  by  the  Supreme 
Court  of  Massachusetts — Wales  vs.  Stetson,  2  Mass.,  146, 
Parsons  C.  J. — saying  that  "rights  legally  vested  in  any 
corporation  cannot  be  controlled  by,  or  destroyed  by  any 
subsequent  statute,  unless  a  power  for  that  purpose  be 
reserved  to  the  Legislature  in  the  act  of  incorporation." 

In  the  case  of  Providence  Bank  vs.  Bllings,  4  Peters, 
400,  the  bank  was  resisting  a  tax  imposed  by  the  Legis- 
lature of  Rhode  Island.  The  charter  contained  no  pro- 
vision on  the  subject.  The  Court  said,  "The  question  is 
to  be  answered  by  the  charter  itself.  It  contains  no 
stipulation  promising  exemption.  The  State  has  made 
no  express  contract  which  has  been  impaired  by  the  act 
of  which  the  plaintiff  complains.  No  words  have  been 
found  in  the  charter  which  in  themselves  would  justify 
the  opinion  that  the  power  of  taxation  was  in  the  view 
of  either  of  the  parties,"  and  upon  this  reasoning,  the 
claim  of  exemption  was  denied. 

In  the  Charles  River  Bridge  case,  there  was  no  exclu- 
sive privilege  given  to  the  Company  over  the  waters  of  the 
river  above  or  below  its  bridge;  no  right  to  erect  another 
bridge,  or  to  prevent  others  from  doing  so,  and  on  this 
reasoning  the  relief  was  refused. 

In  case  of  O.    L.   I.   &  T.  Co.  vs.   Debolt,  16  How, 

435,  Ch.  J.  Taney,  referring  to  the  Providence  Bank  case 

and  the  Charles  River  Bridge  case,  says: 

.     .  "In  both  th^se  cases  the  Court  in  the  clearest  terms 

"recognizes  the  power  of  the  State  Legislature  to  bind  the 


"State  by  contract,  and  the  cases  were  decided  against  the 
"corporations,  because,  according  to  the  rule  of  construction 
"in  such  cases,  the  privilege  or  exemption  claimed  has  not 
"been  granted.  But  the  power  to  make  the  contract  was 
"not  denied,  and  I  am  not  aware  of  any  decision  of  the  laws 
"calling  in  question  any  of  the  prinwiples  maintained  in 
"either  of  these  leading  cases." 

In  Gordon's  case,  3  Howard,  133,  the  Court  held  that 
the  question  was  the  same  as  in  the  Debolt  case,  and  upon 
the  construction  given  to  the  words  of  the  particular  char- 
ter, it  was  held  that  the  State  had  released  its  rights.  ' 

In  Richmond,  ifecv,  R  R  Co.  vs.  Louisa  R.  R.  Co., 
13  Howard,  71,  the  same  question  as  to  the  power  of  one 
Legislature  to  bind  another  by  the  terms  of  a  private  char- 
ter, was  before  the  Court,  and  while  it  was  held  that  the 
charter  of  the  complainant  did  not  grant  the  exclusive 
privilege,  as  claimed,  yet  it  was  expressly  held  that  the 
Legislature  had  the  power  to  make  such  an  agreement,  and 
if  such  an  agreement  had  been  made,  it  would  have  been 
inviolable. 

In  the  case  of  State  Bank  of  Ohio  vs.  Knoop,  16 
How.,  389,  the  Court  say: 

"That  a  State  has  power  to  make  a  contract  which 
"shall  hind  it  in  the  future,  is  so  universally  held  by  the 
"Courts  of  the  United  States,  and  the  States,  that  a  general 
"citation  of  authorities  is  unnecessary. 

"There is  no  Constitutional  objection  to  the  exercise  of 
the  power  to  make  a  binding  contract  by  a  State. 

"It  necessarily  exists  in  its  sovereignty,  and  it  has  been 
so  held  by  all  the  Courts  in  this  country.  A  denial  of  this 


26 

is  a  denial  of  State  sovereignty.      It  takes  from  the  State 
a  power  essential  to  discharge  its  functions  as  sovereign. 

"If  it  do  not  possess  this  attribute,  it  could  not  commu- 
nicate it  to  others.  There  is  no  power  possessed  by  it 
more  essential  than  this.  Through  the  instrumentality 
of  contracts  the  machinery  of  government  is  carried  oil. 
Money  is  borrowed,  and  obligations  given  for  payment. 

''Contracts  are  made  with  individuals  who  give  bonds 
to  the  State.  So  in  the  granting  of  charter.  If  there  be 
any  force  in  the  agreement,  it  applies  to  contracts  made 
with -individuals  the  same  as  with  corporations. 

"But  it  is  said  the  State  cannot  barter  away  any  part  of 
its  sovereignty.  No  one  ever  contended  rhat  it  could.  A 
State  in  granting  privileges  to  a  bunk,  with  a  view  of  af- 
fording a  sound  currency  or  advancing  any  policy  connected 
with  the  public  interest,  exercises  its  sovereignty,  and  for 
a  public  purpose,  of  which  it  is  the  exclusive  judge.  Under 
such  circumstances,  a  contract  made  for  a  specific  tax,  as  in 
the  case  before  us,  is  binding.  This  tax  continues,  though 
all  the  other  banks  should  be  exempt  from  taxation.  Hav- 
ing the  power  to  make  the  contract  and  rights  having 
vested  under  it,  it  can  no  more  be  disregarded,  nor  set 
aside  by  a  subsequent  legislation,  than  a  grant  for  land. 
This  act,  so  far  from  parting  with  any  portion  of  sov- 
ereignty, is  an  exercise  of  it.  Can  any  one  deny  the  power 
to  the  Legislature?  To  deny  either  ol  these  is  to  take 
away  State  sovereignty.  It  must  be  admitted  the  State 
has  the  sovereign  power  to  do  this,  and  it  would  have  the 
sovereign  power  to  impair  or  annul  the  contract  so  made, 
had  not  the  Constitution  ot  the  United  States  inhibited  the 
exercise  of  such  a  power. 


•21 

"The  vague  and  undefined  and  undefinable  notion  that 
every  exemption  from  taxation,  or  a  specific  tax  which 
withdraws  certain  Objects  from  the  general  tax  law,  affects 
the  sovereignty  of  the  State,  is  indefensible." 

And  so  the  Court  held  that  a  subsequent  tax,  fixing  a 
tax  higher  than  that  fixed  by  the  charter,  was  void. 

In  the  case  of  Thompson  vs.  Rutland  &  Burlington 
R.  R.  Co.,  27th  Vt.,  145,  the  question  was,  whether 
the  defendant  could  be  required,  by  a  subsequent  act,  to 
provide  cattle  guards,  there  being  no  provision  on  the  sub- 
ject in  the  charter.  Ch.  J.  Redfield  said,  in  the  opinion 
of  the  Court,  that  natural  and  artificial  persons  stand  upon 
the  same  ground,  and  that  this  is  the  true  ground  and  the 
only  one  upon  which  equal  rights  and  just  liabilities  and 
duties  can  be  firmly  based.  He  adds: 

"To  apply  this  rule  to  the  pre°ent  case  it  must  be 
conceded  that  all  which  goes  to  the  constitution  of  the  cor- 
poration and  its  beneficial  operation,  is  granted  by  the 
Legislature,  and  cannot  be  revoked,  either  directly  or  indi- 
rectly, without  a  violation  of  the  grant  \\rhich  is  regarded 
as  impairing  a  contract,  and  so  prohibited  fry  the  United 
States  Constitution. 

"And,  if  we  suppose  the  Legislature  to  have  made  the 
same  grant  to  a  natural  person  which  they  did  to  defendant, 
and  which  they  may  undoubtedly  do  (Moor  vs.  Veasie,  4 
Pet.,  568),  it  would  scarcely  be  supposed  that  they  thereby 
parted  with  any  general  legislative  control  over  such  per- 
son, or  the  benefits  secured  to  him.  Such  a  supposition, 
when  applied  to  a  single  natural  person,  sounds  almost 
absurd. 


28 

"But  it  must,  in  fact,  be  the  same  thing  when  applied 
to  a  corporation,  however  extensive. 

."In  either  case,  the  privilege  of  rufining  the  road  and 
taking  tolls  of  faie  and  freights,  is  the  essential  franchise 
confeired.  ANY  ACT  ESSENTIALLY  PARALYZING  THIS  FRAN- 

CHISE,   OK    DESTROYING    THE     PROFITS    ARISING    THEREFROM, 

WOULD  NO  DOUBT  BE  VOID  But  beyond  that  the  entire 
power  of  legislative  control  resides  in  the  Legislature, 
unless  such  power  is  expressly  limited  in  the  grant  to  the 
corporation  as  by  exempting  the  property  for  taxation  in 
consideration  of  a  share  of  the  profits,  or  a  bonus,  or  the 
public  duties  assumed-" 

Here  the  distinction  is  very  clearly  drawn  between 
such  legislative  powers  as  affect  the  life  and  health  and 
general  safety  of  the  people,  commonly  known  as  police 
powers,  which  are  supposed  to  be  reserved,  and  the  power 
"to  interfere  with  the  essential  franchise  conferred,"  which 
"essential  franchise"  is  said  to  be  the  running  of  the  road 
and  taking  tolls — and  the  learned  judge  declares  that  "any 
act  essentially  paralyzing  this  franchise,  or  destroying  the 
profits  arising  therefrom,  would  be  void,"  and  it  would 
seem  that  even  if  the  charter  did  not  expressly  grant  to  the 
corp3ration  the  power  to  fix  the  rates,  the  power  would  be 
implied  as  a  necessary  consequence,  and  any  interference 
with  the  power  affecting  the  profits  would  be  an  infringe- 
ment of  "the  essential  franchise  conferred"  by  the  charter. 

In  the  case  of  Washington  Bridge  Co.  vs.  State,  18 
Conn.,  64,  the  Court  say: 

"Ever  since  the  case  of  Dartmouth  College  vs.  Wood- 
uward  was  decided  by  the  National  Court  recognizing 


29 

"the  charter  of  private  corporations  as  contracts  pro- 
jected from  invasion  by  the  Constitution  of  the  United 
"States,  no  other  Court  in  this  country  has  disregarded 
"the  doctrine,  and  we  consider  it  now  as  obligatory,  and 
"settled  beyond  our  reach  either  to  deny  or  disregard, 
"even  if  any  of  us  should  doubt  its  original  propriety." 

In  Commonwealth  vs.  New  Bedford  Bridge,  2  Gray, 
348,  the  Court  say: 

"Upon  familiar  and  well  settled  principles,  the  act, 
"(charter  of  company)  when  accepted  by  the  defendants, 
"was  an  executed  contract  between  them  and  the  Gov- 
"ernment,  by  the  terms  of  which,  as  contained  in  the 
"charter,  both  parties  are  equally  bound.  The  defend- 
"ants  cannot,  without  the  consent  of  the  Legislature, 
"escape  or  evade  any  of  the  duties  imposed  upon  or  as- 
"sumed  by  them  under  the  act,  nor  can  the  Legislature, 
"without  the  consent  of  the  defendants,  in  any  way  af- 
ufect  or  impair  the  original  terms  of  the  charter  by 
"annexing  new  conditions  or  imposing  additional  duties 
"onerous  in  their  nature,  or  inconsistent  with  a  reasona- 
ble construction  of  the  contract  *  The  Common- 
"wealth  has  no  more  power  or  authority  to  construe  the 
"charter  than  has  the  corporation.  By  becoming  a  party 
"to  a  contract  with  its  citizens,  the  Government  divests 
"itself  of  sovereignty  with  respect  to  the  terms  and  con- 
ditions of  the  compact,  and  its  construction  and  inter- 
"pretation,  and  stands  in  the  same  position  as  a  private 
"individual.  If  it  were  otherwise,  then  the  rights  of 
"parties  contracting  with  the  Government  would  be  held 


30 

"at  the  caprice  of  the  sovereign,  and  exposed  to  all  the 
"risks  arising  from  the  corrupt  or  ill-judged  use  of  mis- 
"guided  power. 

"The  interpretation  and  construction  of  contracts, 
"when  drawn  in  question  between  the  parties,  belongs 
"exclusively  to  the  judicial  branch  of  the  Government." 

In  the  Binghampton  Bridge  case,  3  Wallace,  ^2,  the 
question  arose  whether  the  provision  in  the  first  charter, 
that  no  other  bridge  should  be  built  within  two  miles 
either  way,  was  binding  upon  subsequent  Legislatures, 
and  it  was  held  that  the  provision  was  so  binding,  and  the 
Court  held  void  a  charter  afterwards  granted  authorizing 
another  bridge  to  be  built  within  the  prescribed  limits. 

Mr.  Justice  Davis,  in  delivering  the  opinion  of  the 
Court,  says : 

"The  Constitutional  right  of  one  Legislature  to  grant 
"corporate  privileges  and  franchises,  so  as  to  bind  and 
"conclude  a  succeeding  one,  has  been'denied.  We  have 
"supposed  if  anything  was  settled  by  an  unbroken  course 
"of  decisions  in  the  Federal  and  State  Courts,  it  wa$ 
"that  an  act  of  incorporation  was  a  contract  between 
"the  State  and  the  stockholders.  All  Courts  at  this  day 
•'are  estopped  from  questioning  the  doctrine.  The  se- 
"curity  of  property  rests  upon  it,  and  every  successful 
"enterprise  is  undertaken  in  the  unshaken  belief  that  it 
"will  never  be  forsaken.  A  departure  from  it  now 
"would  involve  dangers  to  society  that  cannot  be  fore- 
"seen;  it  would  shock  the  sense  of  justice  of  the  coun- 
"try,  unhinge  its  interests,  and  weaken,  if  not  destroy 


31 

"that  respect  which  has  always  been  felt  for  the  judicial 
"department  of  the  Government.  An  attempt  even  to 
"reaffirm  it,  could  only  tend  to  lessen  its  force  and  obli- 
gation. It  received  its  ablest  exposition  in  the  case  of 
"Dartmouth  College  vs.  Woodward,  which  case  has  ever 
"since  been  considered  a  land-mark  by  the  profession, 
"and  no  Court  has  since  disregarded  the  doctrine  that 
"the  charters  of  private  corporations  are  contracts  pro- 
jected from  invasion  by  the  United  States.  And  it  has 
"since  so  often  received  the  solemn  sanction  of  this 
"Court,  that  it  would  unnecessarily  lengthen  this  opinion 
"to  refer  to  the  cases,  or  even  enumerate  them.  The 
"principle  is  supported  by  reason  as  well  as  authority. 
"It  was  well  remarked  by  the  Chief  Justice  in  the  Dart- 
"mouth  College  case,  that  the  objects  for  which  a  cor- 
poration is  created  are  universally  such  as  the  Govern- 
"ment  wishes  to  promote.  They  are  deemed  beneficial 
"to  the  country,  and  this  benefit  constitutes  the  consid- 
"eration — and  in  most  cases  the  sole  consideration — for 
"the  grant.  The  purposes  to  be  attained  are  generally 
"beyond  the  reach  of  individual  enterprise,  and  can  only 
"be  accomplished  through  the  aid  of  associated  wealth. 
"This  will  not  be  risked  unless  privileges  are  given  and 
"securities  furnished  in  an  act  of  incorporation.  The 
"wants  of  the  public  are  often  so  imperative  that  a  duty 
"is  imposed  on  Government  to  provide  for  them,  and  as 
"experience  has  proved  that  a  State  should  not  directly 
"attempt  to  do  this,  it  is  necessary  to  confer  on  others 
"the  faculty  of  doing  what  the  sovereign  power  is  un- 


"willing;  to  undertake.  The  Legislature  therefore  says 
"to  public-spirited  citizens:  clf  you  will  embark,  with 
"your  time,  money  and  skill,  in  an  enterprise  which  will 
"accommodate  the  public  necessities,  we  will  grant  you, 
"for  a  limited  time,  or  in  perpetuity,  privileges  that  will 
"justify  the  expenditure  of  your  money  and  the  employ- 
"ment  of  your  time  and  skill.'  Such  a  grant  is  a  con- 
"tract,  with  mutual  considerations  and  justice,  and  good 
"policy  alike  require  that  the  protection  of  the  law 
"should  be  assured  to  it." 

In  the  case  of  Minot  vs.  P.  W.  &  B.  R.  R.  Co.,  18  Wal- 
lace, 206,  the  Supreme  Court  of  the  United  States  again 
announced  the  same  doctrine.  They  say — 

"  That  the  charter  of  a  private  corporation  is  a 
"contract  between  the  State  and  the  corporators,  and 
"within  the  provision  of  the  Constitution  prohibiting 
"legislation  impairing  the  obligation  of  contracts,  has 
"been  the  settled  law  of  this  Court  since  the  decision  in 
"the  Dartmouth  College  case. 

"Nor  does  it  make  any  difference  that  the  uses  of 
the  corporation  are  public,  if  the  corporation  itself  be 
private. 

"The  contract  is  equally  protected  from  legislative 
"interference,  whether  the  public  be  interested  in  the 
"exercise  of  its  franchise,  or  the  charter  be  granted  for 
"the  sole  benefit  of  its  corporators.'' 

See.  also.  Home  of  the  Friendless  vs.  Rouse,  8  Wal- 
lace, 431,  and  the  University  tax  case,  same  volume. 


33 

In  the  case  of  O.  &  M.  R.  R.  Co.  vs.  McClelland,  25 
111.  140,  this  Court  said : 

'•The  decisions  of  the  British  and  American  Courts 
"are  numerous,  and  believed  to  be  uniform — that  a  char- 
"ter  of  a  private  corporation,  not  created  for  public  or 
"municipal  purposes,  is  a  contract  between  the  Govern- 
"ment  and  the  corporators. 

"When  such  a  charter  is  granted  and  accepted,  it 
"creates  an  implied  agreement  that  they  shall  be  per- 
"mitted  to  exercise  the  rights  and  franchises  conferred, 
"and  that  they  will,  on  their  part,  in  good  faith,  accom- 
plish the  objects  of  their  creation,  and  discharge  all  the 
"duties  imposed  by  the  charter.  Being  a  contract,  it 
"necessarily  follows  that  any  act  of  the  Legislature 
"which  repeals,  materially  impairs  or  alters  their  rights 
''without,  their  assent,  would  be  in  contravention  of  this 
"Constitutional  provision." 

And  in  the  case  of  Newstadt  vs.  Illinois  Centra[ 
Railroad  Company,  31st  111.  484,  the  question  arose  as  to 
the  validity  of  the  provision  of  defendant's  charter  with 
regard  to  the  payment  of  taxes.  The  Court  sustained 
the  provision,  and  remark : 

"The  act  to  incorporate  the  Illinois  Central  Railroad 
"Company,  of  which  the  above  section  is  a  par,t.  is  a  con- 
"  tract,  between  the  State  and  the  company  which  cannot 
"be  changed  or  annulled  without  the  consent  of  both 
"contracting  parties." 

In  this  case,  the  city  of  LaSalle,  under  a  charter 
passed  subsequent  to  the  charter  of  defendant,  claimed 


34 

the  right  to  impose  taxes  upon  the  property  of  defend- 
ant, in  contravention  of  the  provisions  of  defendant's 
charter  upon  that  subject,  and  the  decision  so  clearly 
and  explicitly  determines  the  character  of  defendant's 
charter,  affirming  it  to  be  a  contract  incapable  of  repeal 
or  modification  by  the  State  without  the  consent  of  the 
company,  that  further  argument  or  citation  of  authori- 
ties would  seem  to  be  wholly  unnecessary. 

Again,  in  the  case  of  Illinois  Central  Railroad  Com- 
pany vs.  The  City  of  Bloomington,  Chicago  Legal  News, 
Vol.  VII,  p.  379,  this  Court  was  called  upon  to  consider 
the  liability  of  the  company  to  erect  and  maintain  cross- 
ings on  streets  subsequent  to  the  building  of  the  road, 
the  city  claiming  the  right  under  its  charter  to  require 
all  railroad  companies  to  maintain  such  crossings;  and  it 
was  held  that  the  company  not  being  required  by  any 
provision  of  its  charter  to  bear  such  a  burden,  that  it 
was  not  legally  imposed.  The  burden  was  in  effect  a 
tax  which  was  not  only  unequal  and  oppressive,  but  it 
was  such  as,  under  the  provisions  of  the  charter  referred 
to  in  the  Newstadt  case,  could  not  be  enforced. 

In  the  case  of  Phil.,  Wil.  &  Bait.  R.  R.  Co.  vs.  Bowers' 
4  Houston,  506,  decided  at  June  Term,  1873,  the  Court  of 
Errors  and  Appeals  of  Delaware,  was  called  upon  to  con- 
sider the  validity  of  a  legislative  provision  fixing  a  tariff 
of  rates  for  the  railroad  in  question. 

The  charter  conferred  upon  the  company  the  right 
to  fix  the  rates,  with  no  reservation  of  any  power  in  the 
premises  to  the  State. 


3$ 

The  Court  held  that  the  subsequent  act  fixing  the 
tariff  was  in  contravention  of  the  charter,  and  was  void 
because  it  impaired  the  obligation  of  the  contract.  The 
Court  say: 

"In  the  first  place,  then,  since  the  decision  of  the 
"'celebrated  Dartmouth  case  in  1819,  it  had  ceased  to  be 
"a  point  for  discussion  that  a  corporate  charter  is  a  con- 
"tract  within  the  prohibitory  clause  referred  to:  and 
'"further,  that  a  charter  is  none  the  less  protected 
"against  legislative  interference,  although  the  franchise 
"'granted  be  one  in  the  exercise  of  which  the  public  are 
"interested,  if,  nevertheless,  the  corporation  itself  be  a 
"private  one.  For  the  uses  of  a  corporation  may,  in  a 
"certain  sense,  be  public,- and  yet  the  corporation,  with 
"its  franchises  and  property,  be  private,  as  much  so  as  if 
"such  franchise  and  property  were  vested  in  a  single  in- 
dividual instead'of  in  a  company;  and  nothing  can  be 
"clearer  than  that  franchises  and  property  which  in  their 
"nature  are  private,  must  be  equally  inviolate,  whether 
"vested  in  a  corporation  or  in  an  individua-1.  To  this 
"class  of  private  corporations  for  public  uses,  belong  a 
"large  number,  such  as  colleges,  banks,  insurance,  turn- 

"pike  companies,  &c." 

****** 

"The  object  and  effect  of  the  law  under  considera- 
tion is  to  regulate,  and  so  far  restrict  the  power  of  the 
"railroad  company  to  charge  for  the  transportation  of 
"passengers  and  freight.  Of  such  a  power,  it  is  hardly 
"enough  to  say  that  it  is  one  of  value  and  importance  to 


"the  company.  It  is  essential  to  the  enjoyment  of  the 
"franchise,  and  must  be  presumed  to  have  been  the  con- 
sideration for  which  the  corporators  accepted  the  char- 
ter, invested  their  money,  and  assumed  the  obligations 
"imposed  upon  them. 

"It  was  undoubtedly  competent  for  the  Legislature, 
"by  a  provision  of  the  charter,  to  reserve  to  itself  the 
"right  to  supervise  and  regulate,  in  the  future,  this 
"power  of  the  Company;  but  upon  a  careful  examination 
"of  the  original  acts  incorporating  the  several  companies 
"now  composing  the  Phil.,  Wil.  &  Bait.  R.  R.  Co.,  we  are 
"unable  to  find  in  them  any  reservation  of  such  legisla- 
tive control  as  is  necessary  to  sustain  the  act  under 
"consideration. 

"The  power  to  adjust  the  tariff  of  charges  by  its  own 
"officers,  according  to  their  view  of  the  necessities  of  busi- 
4 'ness  and  of  justice  to  the  public,  withotft  supervision,  was 
"a  part  of  the  franchise  as  it  was  granted. 

"The  attempted  regulation  by  the  Legislature  of  this 
"power,  materially  abridges  the  beneficial  exercise  of  it  by 
"the  corporation,  and  without  doubt  impairs  the  obliga- 
tion of  the  contract  in  the  sense  of  the  Constitution,  as 
"interpreted  by  the  Dartmouth  College  case.  The  ques- 
tion is  rot  admissible  in  what  degree  the  power  of  the 
"company  is  restricted  by  the  statute,  or  whether  the  reg- 
1 -illation  enacted  by  it  is,  or  is  n«»t  a  reasonable  or  proper 
"one." 

The  Supreme  Court  of  Missouri,  in  the  case  of  Sloane 
vs.  Mo.  Pac.  R.  R.  Co.,  have  recently  had  occasion  to  ex- 
amine this  subject.  The  opinion  was  filed  on  the  22d  of 


37 

Nov.,  1875,  and  it  has  not  been  published,  we  insert  it  en- 
tire.     It  is  as  follows: 

"Napton,  J.,  delivered  the  opinion  of  the  Court. 

"On  the  first  day  of  April.  1872,  the  Legislature  of 
this  State  passed  an  act  entitled  'An  Act  to  prevent  unjust 
discriminations  and  extortions  in  the  rates  to  be  charged 
by  the  different  railroads  in  this  State  for  tmnsporation  of 
freight  on  said  road.'  The  first  section  of  this  act  is  as 
foilaws : 

'*  'No  railroad  corporation  organized  or  doing  business 
in  this  State,  under  any  act  of  incorporation  or  general  law 
of  this  State,  now  in  force  or  which  may  hereafter  be 
enacted,  shall  directly  or  indirectly  charge  or  collect  for  the 
transportation  of  goods,  merchandise  or  property  on  its 
road,  for  any  distance,  any  larger  or  greater  amount  as  toll 
than  is  at  the  same  [time]  charged  or  collected  for  the 
transportation  of  similar  quantities  of  the  same  class  of 
goods,  merchandise  or  property  over  a  greater  distance  upon 
the  same  road;  nor  shall  such  corporation  charge  different 
rates  for  receiving,  handling  or  delivering  freight  at  differ- 
ent points  on  its  road,  or  roads  connected  therewith  which 
it  has  a  right  to  use;  nor  shall  any  such  railroad  corpora- 
tion charge  or  collect  tor  the  transportation  of  goods,  mer- 
chandise or  property  over  any  portion  of  its  road  a  greater 
amount  as  toll  or  compensation  than  shall  be  charged  or 
collected  by  it  for  the  transportation  of  similar  quantities  of 
the  same  class  of  goods,  merchandise  or  property  over  any 
other  portion  of  its  road  of  equal  distance;  and  all  such 
rules,  regulations  or  by-laws  of  any  railroad  corporation 
as  fix,  prescribe  or  establish  any  greater  toll  or  compensa- 


38 

tion  than  is  hereinbefore  described,  are  hereby  declared  to 
be  void.' 

"The  third  section  of  this  act  prohibited  any  railroad 
company  from  increasing  its  rates  of  toll  for  transportation, 
etc.,  from  one  point  to  another,  by  ^reason  of  any  decrease 
in  its  rates  lequired  by  the  first  section,  and  declared  that 
the  race  of  toll  after  the  passage  of  the  act  should  not  be 
altered  from  what  it  was  in  the  same  month  and  day  in  the 
year,  1871. 

"The  fourth  section  declared  a  forfeiture  of  one  thous- 
and dollars  for  any  breach  of  this  act,  to  be  recovered  by 
any  person  aggrieved. 

"This  suit  is  for  a  violation  of  this  act  by  the  defend- 
ant, setting  out  thirty-one  breaches  of  the  act,  and  claiming 
SI, 000  for  each  breach  In  one  count  the  allegation  is 
that  defendant  charged  and  received  a  greater  sum  for 
transporting  certain  merchandise  from  St.  Louis  to  War- 
rensburg  than  it  charged  for  transporting  the  same  class  of 
freight  in  similar  quantities  from  St.  Louis  to  Kansas  City, 
the  distance  from  St,  Louis  to  Kansas  City  being  63^  miles 
greater  than  from  St.  Louis  to  Warrensburg. 

"The  defendant  answered,  admitting  the  facts  charged, 
but  asserting  that  under  its  charter,  dated  March  12,  1849, 
and  an  amendatory  act  passed  March   1,  1851,  and  under 
the  act  of  March  31,   1868,  the  right  to  regulate  its  rates  of 
freight,  etc  ,  was  left  exclusively   to  defendant.      The  an- 
swer moreover  alleges  that  the  rates   were   reasonable,  and 
the  discrepancy  stated  was  owing  to  the  competition  which 
the  road  had  to  meet  at   Kansas  City  from  other   lines  of 
railroad  and  from  steambocts,  and  denies  the   validity  of 
the  act  of  1872." 


39 

To  this  answer,  the  plaintiffs  demurred  for  various 
reasons  : 

"First,  because  the  provisions  of  defendant's  charter  are 
not  impaired  by  the  act  of  1872 

"Second,  because  the  charter  of  defendant  does  not 
authorize  it  to  niako  any  such  regulation  of  freights  as  is 
provided  against  in  the  act  of  1872. 

"Third,  because  the  act  of  1872  5s  a  police  regulation, 
authorized  by  the  laws  of  the  State  and  of  the  United 
States. 

"Fourth,  because  defendant's  road  is  a  public  highway, 
and  the  act  of  1872  is  not  void. 

"Fifth,  because  the  charter  of  defendant  does  not  ex- 
empt it  from  the  operation  of  the  law  of  April  1,  1872, 
under  which  the  proceedings  were  had. 

"The  Court  overruled  the  demurrer,  and  the  plaintiffs 
electing  to  stand  thereon,  a  judgment  for  defendant  was 
entered,  and  the  case  comes  here  by  appeal. 

"The  questions  presented  by  this  case  have  been  dis- 
cussed very  elaborately  and  with  great  ablility  on  each  side; 
but  we  think  the  determination  of  the  case  depends  on  the 
single  question  whether  this  act  of  1872  is  a  valid  act  so  far 
as  the  present  defendant  is  concerned. 

"It  is  scarcely  necessary  to  refer  to  the  original  charter 
of  the  defendant,  because  the  act  of  the  Legislature  of 
March  31,  1868,  under  which  the  present  company  bought 
the  road,  is  a  change  of  the  original  charter.  The  act  de^ 
dared  that  'the  said  railroad  company  shall  be  subject  to 
the  provisions  of  the  general  laws  of  the  State,  now  in  force 
or  hereafter  to  be  enacted,  classifying  freights  and  fixing 
the  regulation  rates  and  changes  for  the  transportation  of 


40 

freights  and  passengers  by  the  railroads  of  this  State:  Pro- 
vided, that  the  provisions  of  this  section,  subjecting  the 
Pacific  Railroad  to  future  legislation,  shall  not  take  effect 
for  ten  years  after  the  passage  of  this  act  ' 

"This  act  undoubtedly  recognizes  the  fact  that  previous 
to  its  passage  the  Pacific  Railroad  was  not  subject  to  any 
regulations  of  the  Legislature  classifying  freights  or  fixing 
the  rates  of  transportation,  but  subjects  the  road  to  such 
legislative  regulations  after  1878. 

"The  charter  of  this  company  had  provided  that  the 
company  'should  determine  the  terms,  conditions  and 
manner  in  which  merchandise,  property  and  passengers 
should  be  transported  thereon,  and  that  such  company 
should  receive  such  tolls  and  freights  as  may  be  determined 
»m  by  the  Directors,  and  should  keep  up  statements  of  the 
rates  of  tolls  and  freights  to  be  charged  ' 

"We  hardly  think  it  necessary  to  revert  to  the  Dart- 
mouth College  case  to  justify  the  assertion  tl.at  private 
corporations,  although  established  for  public  use,  are  still 
entitled  to  such  rights  as  the  Legislature  creating  them 
have  bestowed  in  their  charter  or  acts  of  creation.  If  the 
rights  so  bestowed  are  inconsistent  with,  or  embarrass  the 
powers  which  the  Legislatures  cannot  part  with,  then  such 
renunciation  by  Legislatures  would  be  of  no  avail,  and  not 
bind  their  successors.  It  is  not  contended  in  this  case  that 
a  Legislature  may  not  part  with  iss  right  of  taxation — one 
of  the  most  important  attributes  of  sovereignty.  The  con- 
trary has  been  asserted  by  the  Supreme  Court  of  the  United 
States,  and  its  decisions  have  been  acquiesced  in.  The 
right  to  regulate  the  tolls  on  a  road  is  a  matter  of  inferior 
importance  to  the  State:  and  if  the  right  of  taxation  may 


41 

be  abandoned,  it  is  difficult  to  perceive  why  the  right  of 
regulation  of  tolls  may  not  be  transferred  to  the  corpora- 
tion. 

"The  power  to  regulate  tolls  is,  then,  granted  to  this 
defendant,  not  merely  by  its  charter,  but  by  the  act  of 
1868,  under  which  defendant  bought.  The  right,  it  is 
conceded,  is  subject  to  the  inherent  right  of  the  State  to 
make  police  regulations,  and  to  the  common  law  right  of 
every  citizen  to  hold  a  common  carrier  responsible  for  every 
violation  by  the  railroad  company  of  its  duty  as  a  com- 
mon carrier. 

"The  act  of  1872  undertakes  to  define  the  obligations 
of  railroad  companies,  and  to  declare  that  a  charge  'for  one 
distance,  if  it  exceeds  a  charge  for  a  longer  one,  is  an  un- 
just discrimination.  It  may  be  so;  but  whether  it  is  or 
no*",  is  a  question  for  the  courts  to  decide,  and  not  the 
Legislature.  The  act  of  1872  declares  that  such  discrimi- 
nation is  an  unjust  one,  without  regard  to  any  circum- 
stances whatever.  In  other  words,  the  Legislature,  by 
this  act,  assumed  a  power  which  the  charter  had  originally 
granted  to  the  company,  and  which  the  act  of  1868  had 
continued  to  confide  in  the  company  for  ten  years  after  the 
passage  of  that  act;  and  the  only  question  is  whether  the 
act  of  18t>8,  under  which  this  road  is  held,  is  a  valid  one; 
'for  if  it  is,  then  primarily  the  defendant  is  invested  with 
the  power  to  fix  its  rates  of  freights  and  passage,  subject  to 
such  police  regulations  as  the  State  always  retains  power 
to  make.  The  term  police  is  a  very  indefinite  one.  Per- 
haps Judge  Cooley's  definition  may  be  considered  as  exact 
a  one  as  we  shall  find:  'Police  regulations,'  says  the  au- 


42- 

tlior,  'must  have  some  reference  to  the  comfort,  safety,  or 
welfare  of  society;  they  mast  not  be  in  conflict  with  any 
of  the  provisions  of  the  charter;  and  they  must  not,  under 
pretense  of  regulation,  take  from  the  corporation  any  of 
the  essential  rights  and  privileges  which  the  charter  con- 

.  fers.  In  short,  they  must  be  police  regulations  in  fact,  and 
not  amendments  of  the  charter  or  curtailments  of  the 
corporate  franchise.'  This  subject  was  thoroughly  exam- 
ined in  the  Court  of  Errors  and  Appeals  of  the  State  of 
Delaware,  in  the  case  of  the  Philadelphia,  W.  &  B.  R.  Co. 

•  vs.  Bowers,  4  Houston,  506,  a  case  very  much  like  the 
present  in  all  respects. 

"In  that  case  it  was  held  that  the  power  of  the  com- 
pany to  adjust  its  tariffs  of  charges  by  its  own  officers,  ac- 
cording to  their  views  of  the  necessities  of  business  and 
of  justice  to  the  public,  having  been  confided  in  the  fran- 
chise granted  to  the  company,  without  any  reservation  of 
legislative  supervision  31-  control,  the  Legislature  of  the 
State  has  no  right  to  assume  control  of  such  regulations, 
and  undertake  to  fix  by  law  different  rates  from  what  the 
company  had  fixed:  chat  the  power  thus  granted  to  the 
company  was  an  essential  one  to  the  enjoyment  of  its  fran- 
chise, and  must  be  presumed  to  have  been  the  considera- 
tion for  which  the  corporators  accepted  the  charter.  And 
in  regard  to  the  police  power  it  was  held  that  the  Legisla- 
ture may  at  any  time  regulate  the  exercise  of  the  corporate 
franchise  by  general  laws  passed  for  the  peace,  good  order, 
health,  comfort  and  health  of  society,  but  that  under  the 
color  of  such  laws  it  could  not  destroy  or  impair  the  fran- 
chise, nor  any  right  or  power  essential  to  its  beneficial 
exercise. 


43 

"In  this  opinion  of  the  Court  of  Appeals  of  Delaware 
we  heartily  concur,  it  being  understood  that  an}'  citizen 
has  the  right,  without  regard  to  charters,  to  hold  the  com- 
pany responsible  for  any  breach  of  its  duty  as  a  common 
carrier,  in  charging  exorbitant  freights  or  tolls,  or  in  mak- 
ing unjust  discriminations. 

"The  objection  to  the  act  of  1872  is  that  the  Legisla- 
ture undertook  to  pronounce  unjust  certain  discriminations 
made  by  th^  company.  This  the  Legislature  had  no  power 
to  do.  The  right  to  fix  the  tolls  had  already  been  confided 
to  the  defendant  until  the  year  1878. 

"An  arbitrary  rule  was  adopted  by  the  Legislature, 
determining  that  certain  rates  were  unjust.  Whether  they 
were  so  or  not,  was  a  matter  depending  on  circumstances 
of  which  the  Legislature  were  not  made  judges.  The 
liability  of  defendant  at  common  law  and  on  general  prin- 
ciples, not  abrogated  by  the  Legislature,  was  a  matter  for 
the  determination  of  courts  of  justice  with  the  aid  of  furies. 
New  England  Ex.  Co.  vs.  Maine  Central  R.  R.  Co.,  52  N. 
Hamp.,  430;  Att'y  Gen.  vs.  R.  R.  Cos.,  35  Wisconsin, 432. 

"We  were  therefore  all  of  opinion  that  the.  act  of  the 
Legislature  of  April  1,  1872,  was  invalid  so  far  as  it  affects 
the  defendant.  Judgment  affirmed.  The  other  judges 
concur. " 

In  view  of  the  foregoing  citations  we  submit  that  if 
there  be  any  force  in  judicial  decisions,  the  proposition  that 
such  a  charter  is  a  contract,  and  within  the  protection  of 
the  Constitution,  is  not  be  denied.  In  the  language  of 
Mr.  Justice  Davis,  "All  courts,  at  this  day,  are  estopped 
from  questioning  the  doctrine.  *  A  departure  from  it 
now  would  involve  dangers  to  society  that  cannot  be  fore- 


seen;  it  would  shock  the  sense  of  justice  of  the  country, 
unhinge  its  interests,  and  weaken,  if  not  destroy,  that  re- 
spetft  which  has  always  been  felt  for  the  judicial  depart- 
ment of  the  government."  There  can  be  no  departure 
from  it,  nor  can  there  be  any  modification  of  it.  If  not 
recognized  fully,  and  followed  accordingly,  it  must  be 
abandoned  in  toto.  The  early  statesmen  foresaw  the  ne- 
cessity of  this  constitutional  provision  In  the  frequent 
change  of  afficers,  and  the  consequent  temptation  to  try  new 
theories,  and  above  all  the  natural  disposition  to  fly  to  the 
government  for  relief,  in  times  of  commercial  and  mone- 
tary depression,  it  was  foreseen  that  private  rights  based 
upon  contract,  must  often  be  disregarded,  unless  protected 
by  the  stern  and  stable  power  of  the  Federal  Constitution. 
Aside  from  the  injustice  of  such  an  invasion,  it  was  per- 
ceived that  there  could  be  no  moie  fruitfnr  source  of  public 
misfortune,  and  the  people  in  their  sober  second  thought, 
after  the  passion  of  the  hour  ha*  subsided,  will  rejoice  that 
they  are  thus  protected  from  self-injury. 


But  is  said  by  those  who  affirm  the  validity  of  this 
legislation,  that  legislative  authority  is  a  trust  which 
the  Legislature  cannot  irrevocably  delegate  or  abandon. 
It  follows,  then,  that  under  pretense  of  exercising  a 
power  which  could  not  be  abandoned  or  delegated,  the 
Legislature  might  disregard  its  most  solemn  obligations, 


45 

refuse  to  perform  its  most  solemn  contracts,  and  repu- 
diate its  most  solemn  pledges.  In  support  of  this  view, 
that  the  Legislature  cannot  delegate  or  abandon  its 
powers,  certain  adjudications  are  sometimes  cited,  all 
being  substantially  alike  in  the  principle  they  affirm, 
and  of  which  the  following  are  fair  examples: 

The  Presbyterian  Church  vs.  The  City  of  New  York, 
5  Cowen,  538. 

Coates  vs.  the  same,  7  Cowen,  585. 

These  cases  involved  the  power  of  the  City  of  New 
York  to  cancel  privileges  previously  given  by  the  mu- 
nicipal authorities  to  use  certain  grounds  perpetually 
for  the  purposes  of  interment.  After  the  lapse  of  many 
years,  the  growth  of  the  city  about  the  neighborhood 
rendered  it  manifestly  unsafe  and  dangerous  to  the  pub- 
lic health  longer  to  permit  the  grounds  to  be  used  for 
that  purpose,  and  it  was  held  that  the  city  had  no  right, 
in  the  first  instance,  to  grant  such  a  privilege  irrevoca- 
bly, for  it  was  in  plain  violation  of  the  duty  to  protect 
public  health  and  guard  human  life,  and  hence  the  can- 
cellation was  good. 

In  the  case  of  People,  &c.,  vs.  Mayor,  &c.,  of  New 
York,  32  Barbour,  102.  it  was  held  that, in  regard  to  fer- 
ries over  the  waters  belonging  to  the  State,  the  right  to 
regulate  the  tolls  is  an  ancient  and  well  settled  preroga- 
tive of  the  sovereign,  and  the  grantee  of  a  ferry  franchise 
must  be  presumed  to  accept  subject  to  this  implied 
right,  and  where  the  GRANT  is  SILENT  ON  THIS  POINT,  the 
right  of  regulation  remains  in  the  State. 


-46 

In  the  case  of  Commonwealth  vs.  Alger,  7  Gushing, 
84,  the  question  was  as  to  the  right  of  the  State  to  make 
the  regulation  in  question,  which  was  in  regard  to  the 
erection  of  wharves  upon  the  flats  along  the  sea  shore 
subject  to  the  ebb  and  flow  of  the  tide,  by  which  wharves 
was  prevented  a  reasonable  enjoyment  by  the  public  of 
the  free  navigation  of  the  harbor.  And  it  was  held  that 
this  regulation  stood  upon  the  same  ground  as  other 
police  regulations- — such  as  those  affecting  slaughter 
houses,  cemeteries,  hospitals,  wooden  buildings,  powder 
magazines,  and  the  like.  And  the  decision  rested  upon 
the  right  of  the  public  to  fish  or  anchor  upon,  or  sail 
over  the  ground  in  question,  when  the  sea  was  in;  this 
right,  being  fairly  deducible  from  tl>e  provisions  of  the 
ancient  charter  and  laws  of  the  Colony  on  the  subject, 
and  it  followed  that  any  proceeding  interfering  with 
such  public  rights  would  be  illegal. 

In  the  case  of  the  Mayor,  (fee.,  of  Baltimore  vs.  The 
Board  of  Police.  15  Md.,  389,  the  question  was  as  to  the 
powers  of  a  public  corporation,  to-wit:  the  city  of  Bal- 
timore. 

Such  political  bodies  are  mere  agencies  of  the  State 
for  the  better  government  of  a  locality,  and  it  is  not 
doubted  that  the  State  may  at  pleasure  modify  or  repeal 
the  municipal  powers,  taking  care  that  no  private  rights 
that  have  vested  under  the  origkial  authority,  be  mate- 
rially affected. 

The  case  of  O.  &  M.  R.  R.  Co.  vs.  McClelland,  25TTT. 
140,  illustrates  another  class  of  cases,  quite  numerous, 


47 

standing  upon  confessedly  good  grounds,  nowise  in  con- 
flict with  the  position  assumed  by  appellant  in  the  case 
at  bar. 

The  question  was  whether  a  statute  requiring  rail- 
roads to  fence  their  track  was  constitutional,  and  it  was 
solved  in  the  affirmative  upon  reasons  of  acknowledged 
force.  The  statute  was  held  to  be  the  exercise  of  a  po- 
lice power  necessary  for  the  protection  of  human  life, 
and  it  was  likened  to  the  statutes  requiring  the  fencing 

Q,£/\-t# 

of  saltpetre  esmrand  castor  bean  crops,  prohibiting  stock 
from  running  at  large  when  affected  with  contagious 
diseases,  quarantine  regulations,  &c.;  but  the  Court  dis- 
tinctly recognized  the  general  doctrine  of  chartered 
rights  to  be  settled  as  above  stated,  and  as  will  be  seen 
from  a  quotation  heretofore  given  from  the  opinion. 


Again,  it  is  urged  by  those  who  affirm  the  validity  of 
this  legislation,  .that  it  is  but  a  competent  exercise  of  the 
police  power  of  the  State  which  is  acknowledged  to  be  re- 
served in  all  cases.  What  is  meant  by  this  term? 

Blackstone  defines  the  public  police  and  economy  as 
"the  due  regulation  and  domestic  order  of  the  kingdom, 
"whereby  the  inhabitants  of  a  State,  like  members  of  a 
"well  governed  family,  are  bound  to  conform  their  general 
"behavior  to  the  rules  of  propriety,  good  neighborhood,  and 
"good  manners,  and  to  be  decent,  industrious  and  inotten- 
"sive  in  their  respective  stations."  4  Bl.  Com.,  162. 


48 

"The  police  of  a  (State,  in  a  comprehensive  sense, 
"embraces  its  system  of  internal  regulation,  by  which  it 
"is  sought  not  only  to  preserve  the  public  order  and  to 
"prevent  offenses  against  the  State,  but  also  to  establish 
"for  the  intercourse  of  citizen  with  citizen  those  rules  of 
"good  manners  and  good  neighborhood  which  are  calcu- 
lated to  prevent  a  conflict  of  rights,  and  to  insure  to  each 
"the  uninterrupted  enjoyment  of  his  own,  so  far  as  is  rea- 
"sonably  consistent  with  a  like  enjovment  of  rights  by 
"others.''  Cooley  Const.  Line.  572. 

Says  another  jurist,  Judge  Redfield:  "The  police 
"power  of  the  State  extends  to  the  protection  of  the 

*M 

"lives,  limbs,  health,  comfort  and  'quiet  of  all  persons, 
"and  the  protection  of  all  property  within  the  State. 
"According  to  the  maxim,  'sic  utere  tuo,  ut  alienum  non  Icedaa,' 
"which  being  of  unviversal  application,  it  must  of  course 
"be  within  the  range  of  legislative  action  to  define  the 
"mode  and  manner  in  which  every  one  may  so  use  his 
"own  as  not  to  injure  others/1 

Cooley  (Const.  Line,  577)  observes:  "The  limit  to 
"the  exercise  of  the  police  power  in  these  cases  (cor- 
porations acting  under  legislative  charter)  must  be 
"this:  The  regulations  must  have  reference  to  the  com- 
fort, safety  or  welfare  of  society;  they  must  not  be  in 
"conflict  with  any  of  the  provisions  of  the  charter;  and 
"they  must  not,  under  pretense  of  regulation,  take  from 
"the  corporation  any  of  the  essential  rights  and  privileges 
"which -the  charter  confers.  In  short,  they  must  be  po- 


"lice  regulations  in  fact,  and  not  amendments  of  the 
"charter  in  curtailment  of  the  corporate  franchise. 

"The  maxim,  'sic  utere  tuo,  ut  alienum  non  IcedasS  is  that 
"which  lies  at  the  foundation  of  the  power,  and  to  what- 
"ever  enactment  affecting  the  management  and  business 
"of  private  corporations  it  cannot  fairly  be  applied,  the 
"power  itself  will  not  extend.  It  has  accordingly  been 
"held  that  where  a  corporation  was  chartered  with  the 
"right  to  take  toll  from  passengers  over  their  road,  a  sub- 
"sequent  statute  authorizing  a  certain  class  of  persons 
"to  go  toll  free,  was  void.1"1  Pingrey  vs.  Washburn,  1 
Aiken,  268. 

"This  was  not  a  regulation  of  existing  rights,  but  it 
"took  from  the  corporation  that  which  they  before  pos- 
"sessed,  namely,  the  right  to  tolls,  and  conferred  upon 
"individuals  that  which  before  they  had  not,  namely, 
"the  privilege  to  pass  over  the  road  free  of  toll." 

See  The  People,  &c.,  vs.  Jackson  &  M.  P.  R.  R.  Co., 
9  Mich.,  307. 

In  the  State  vs.  Noyes,  47  Maine,  214,  it  was  sought 
by  statute  to  compel  all  railroads  to  wait  at  least  twenty 
minutes  at  the  crossing  of  other  roads,  to  enable  passen- 
gers to  make  close  connections,  and  it  was  urged  that 
this  regulation  was  a  proper  exercise  of  the  police  power. 
The  Court  held  otherwise,  saying: 

"It  is  not  believed  that  those  who  travel  or  cause 
"goods  to  be  transported  on  railroads  have  a  legal  claim 
"for  the  security  of  convenience  by  statute  laws,  requir- 
ing duties  of  the  proprietors  of  such  roads  (which  duties 


n 

"are  additional  to  those  prescribed  in  their  respective 
"charters,  and  which  the  Legislature  has  precluded  it- 
"self  from  imposing)  which  those  who  undertake  to 
'"travel  in  stage  coaches,  or  have  goods  carried  by  other 
"common  carriers,  have  not."' 

Again,  on  page  216,  the  same  Judge  says : 

•'But  if  chartered  rights  may  be  impaired  and  new 
"duties  imposed  upon  a  corporation,  without  compensa- 
tion is  effectually  secured,  with  success,  in  contraven- 
tion of  the  stipulations  in  the  charter,  under  the  prin- 
ciple that  it  is  merely  the  exercise  of  the  police  power 
"to  promote  public  convenience,  it  is  a  new  and  easy 
"mode  by  which  this  constitutional  security  of  private 
"property  and  privileges  may  be  broken  down."' 

In  the  case  of  Phil.,  Wil.  &  Bait,  R.  R.  vs.  Bowers, 
cited  above,  the  Court  of  Errors  and  Appeals  of  Dela- 
ware, thus  discuss  the  subject  ot  police  powers: 

"The  police  power  of  the  State  comprehends  all 
"those  general  laws  of  internal  regulation  which  are 
"necessary  to  secure  the  peace,  good  order,  health  and 
"comfort  of  society.  We  are  now  concerned,  not  so 
"much  to  discuss  this  power  at  large,  as  to  ascertain, 
"with  sufficient  precision  for  the  case  before  us,  what 
"is  the  proper  limit  of  the  State  police  power  in  its 
"bearings  upon  chartered  rights  and  privileges,  as  these 
"are  protected  by  the  Constitution  of  the  United  States. 

"It  is  not  difficult  to  ascertain  a  rule  sufficiently  deti- 
••'nite  to  be  applied  to  cases,  and  one  securing  all  inter- 
"es.ts  involved— saving  to  the  State  on  the  one  hand  all 


II 

"needful  authority  for  the  legitimate  purposes  of  police 
''regulations,  and  yet  on  the  other  hand  not  intrenching 
"upon  the  constitutional  protection  of  chartered  rights. 
"Such  a  rule  would  seem  to  be  this:  That  the  Leg- 
islature may  at  all  times  regulate  the  exercise  of  the 
"corporate  franchise  by  general  laws  passed  in  good  fa.ith 
"for  the  legitimate  ends  contemplated  by  the  State  police 
"power;  that  is.  for  the  peace,  good  order,  health,  com- 
"fort  and  welfare  of  society;  but  that  it  cannot,  under 
"color  of  such  laws,  destroy  or  impair  the  franchise  it- 
"self,  nor  any  of  those  rights  or  powers  which  are  essen- 
tial to  its  beneficial  exercise.  Thus  acts  regulating  the 
"mode  of  carriage  of  passengers  with  a  view  to  their 
"safety,  or  regulating  the  speed  of  travel  through  towns 
"and  cities,  or  prescribing  certain  regulations  for  the 
"public  safety  at  crossings,  or  requiring  the  erection  of 
"fences,  etc.,  are  proper  exercises  of  the  power  of  police 
"regulation.  Such  acts  leave  the  franchise  unimpaired, 
"and  simply  regulate  the  exercise  of  it  in  the  same  par- 
ticulars essential  to  the  general  safety,  health  and 
"comfort  of  society.  But  quite  different  are  acts  which 
"directly  touch  the  constitution  of  the  corporation,  or 
•'abridge  or  modify  any  of  those  corporate  powers  which 
"are  essential  to  the  very  ends  of  its  creation — such 
"powers,  for  example,  as  the  right  to  operate  a  railroad 
"at  all,  the  right  to  take  tolls  or  fares  and  freights,  or  to 
"adjust  their  tariff  of  such  charges.  These  are  not  po- 
lice regulations,  but  are  in  substance  and  effect  amend- 
"ments  of  the  charter,  and  it  is  most  obvious  that  if, 


under  color  of  the  police  power,  corporations  may  be  thus 
dealt  with,  the  Constitutional  provision,  so  solemnly  ad- 
judged by  the  Supreme  Court  to  be  a  protection  to  their 
rights,  is,  after  all,  as  to  them  wholly  nugatory."  * 

The  instances  of  an  appeal  to  the  police  power  in  de- 
fense of  an  act  abrogating  rights  granted  by  previous  legis- 
lation, are  not  uncommon. 

In  the  Binghampton  Bridge  case,  3  Wallace,  it  ap- 
peared that  a  former  generation  had  thought  it  wise  to 
grant  an  exclusive  franchise  for  bridge  purposes,  for  two 
miles  in  each  direction.  At  the  time  the  grant  was  made, 
it  was  the  best  contract  the  State  could  possibly  obtain, 
and  was  highly  satisfactory  to  the  public. 

Afterwards  more  bridges  were  wanted,  and  it  was  pro- 
posed to  build  them  irrespective  of  the  rights  granted  to 
the  first  company,  and  without  compensation  for  an  inva- 
sion ot  the  exclusive  piivileges. 

In   the   New   Bedford    Bridge  case,  2  Gray,  339,  the 

.  Legislature  proposed  to  interfere  in  behalf  of  the  public,  in 

aid  of  navigation,  to  compel  the  building  of  wider  draws. 

In  the  Boston  &  Lowell  R  R.  case,  2  Gray,  1,  the 
same  interference  was  proposed  in  behalf  of  the  public,  to 
secure  another  railroad  between  given  points. 

In  47  Maine,  214,  State  vs.  Noyes,  the  object  was  to 
obtain  close  connections  at  the  expense  of  the  company. 

In  all  these  instances  the  Courts  refused  the  demand, 
holding  that,  while  it  might  be  highly  desirable  to  afford 
the  additional  conveniences  sought  for,  yet  it  could  not  be 
done  without  compensation. 

It  is  not  insisted  that  there  is  any  peculiar  sanctity  at- 


53 

taching  to  a  railroad  franchise.  No  one  claims  that  rail- 
road property  is  entitled  to  any  more  or  other  protection 
than  is  guaranteed  to  private  possessions.  It  is  only  urged 
that  the  same  rules  should  prevail  in  considering  either 
kind  of  property. 

The  effect  of  the  charter  granted  to  these  defendants 
is  to  enable  them,  as  an  artificial  person  in  their  corpor- 
ate capacity,  to  operate  a  business  that  might  be  as  well 
operated  by  a  private  citizen  having  sufficient  means  to 
acquire  or  build  the  road,  and  operate  it.  In  thus  cre- 
ating the  corporation  certain  distinct  powers  are  granted, 
and  among  them  the  following: 

"The  Board  of  Directors  shall  have  power  to  estab- 
lish such  rates  of  toll  for  the  conveyance  of  persons  and 
"property  upon  the  same,  as  they  shall  from  time  to 
"time  by  their  by-laws  direct  and  determine,  and  to  levy 
"and  collect  the  same,  for  the  use  of  said  company." 

This  provision  is  not  indefinite  or  ambiguous — it  is 
plain,  positive,  direct. 

It  was  inserted  in  view  of  the  then  well  settled  law 
of  the  land,  which  regarded  this  charter  as  a  contract, 
which  could  not  be  altered,  modified  or  repealed,  except 
by  consent  of  both  parties.  Suppose  this  clause  had 
been  omitted,  then  the  company  would  have  stood  upon 
the  same  ground  as  a  private  citizen,  exercising  the 
functions  of  a  common  carrier — such  as  a  stage  coach 
proprietor,  the  owner  of  a  steamboat,  or  of  any  other 
vessel  or  vehicle  used  in  serving  the  public  by  carrying 
passengers  and  freight  from  point  to  point.  The  right 
to  take  reasonable  tolls  would  have  been  a  necessary 
incident  to  the  business,  but  it  never  would  have  been 
supposed  that  under  our  system  of  government,  the 


54, 

Legislature  could  have  judicially  ascertained  and  fixed 
upon  certain  rates  as  being  reasonable. 

We  admit,  to  the  fullest  extent,  the  police  power 
of  the  State  over  individuals  and  corporations  alike,  re- 
straining evil  or  immoral  practices,  unwholesome  or 
dangerous  occupations,  requiring  such  safeguards  as  may 
be  necessary  tor  public  health  or  safety,  inthe  perform- 
ance of  lawful  acts,  establishing  quarantine  regulations, 
supervising  the  management  of  hospitals  and  cemeteries; 
but  we  respectfully  submit  that  the  private  rights  can- 
not be  invaded,  chatered  privileges,  monopolies  if  you 
please,  (for  these  may  be  lawful),  cannot  be  broken  down 
to  subserve  the  public  convenience,  or  to  increase  the 
profits  or  gains  of  particular  classes  of  persons.  It  might, 
subserve  the  public  interests  if  all  freights  and  passengers 
could  be  carried  gratis  It  would  doubtless  please  the 
consumers  of  grain  if  the  freights  from  the  cornfield  to  the 
seaboard  were  reduced  one-half,  yet  it  can  hardly  be 
termed  an  exercise  of  the  police  power  for  the  Legislature 
to  pass  a  law  to  that  effect.  As  well  might  the  same 
sovereign  will  determine  the  charges  of  hotels  or  the  profits 
of  manufactories,  because  these  happen  to  be  operated  un- 
der a  charter  granted  by  a  previous  Legislature,  no  such 
power  being  reserved  to  the  State  in  the  charter.  It  was 
never  contended  that  there  could  be  a  legislative  schedule 
of  prices  for  produce  or  manufactured  articles,  for  the  ser- 
vices of  professional  men,  the  wages  of  laborers,  or  the 
profits  of  any  other  branch  of  trade. 

There  is  no  mystery  about  a  railroad  franchise;  it  is 
nothing  more  or  less  than  an  authority  to  an  artificial  per- 


00 

son  to  perform  certain  acts  which  a  natural  person    might 
do  without  the  authority. 

The  consideration  operating  upon  the  mind  of  the 
creator,  is  to  further  some  object  of  conceded  benelit  or  ad- 
vantage to  the  public.  The  terms  and  conditions  of  the 
grant  are  plainly  phrased,  and  these  measure  the  rights 
and  privileges  of  the  corporation.  The  franchise  may  not 
be  valuable  at  first,  the  enterprise  is  one  of  doubtful  pro- 
priety ;  its  success  is  contingent  upon'  many  circumstances 
as  yet  unknown  ;  it  may  prove  a  total  failure,  and  every 
dollar  invested,  and  much  personal  fortune,  may  be  swal- 
lowed up;  the  corporator  take  the  risk.  If  it  succeeds, 
the  franchiae  is  valuable.  Great  risks  ought  to  bring  the 
right  to  enjoy  great  gains:  but  if  the  police  power  may  be 
invoked  on  all  convenient  occasions,  to  trim  the  profits  of 
every  business  to  an  ideal  standard  for  the  benefit  of  those 
whose  means  and  courage  have  not  contributed  to  the  for- 
tunate growth  of  the  business,  then  we  shall  soon  put  an 
effectual  check  upon  all  commercial  enterprises.  What 
incentive  to  prosecute  great  undertakings,  to  overcome 
natural  obstacles  and  risk  immense  sums  in  uncertain  ven- 
tures, if  the  law  will  not  protect  the  promotor  in  his 
profits.  Such  an  agrarian  view,  if  carried  into  practice, 
would  soon  remit  us  to  primitive  conditions,  mentally, 
morally,  and  financially. 

It  was  for  the  Legislature  granting  the  charter  to 
decide  whether  such  an  arrange-uent  would  be  sufficiently 
advantageous  to  the  State.  This  was  for  them  to  say  in 
view  of  their  then  condition,  and  in  so  saying  they  were 
able  t:>  bind  those  who  might  come  after  them.  But 


56 

whether  they  made  a  fortunate  arrangement,  looking  at  it 
in  view  of  present  interests  and  prospects,  is  not  an  admis- 
sible question.  We  must  abide  the  result,  and  must  con- 
strue the  rights  of  the  parties  by  known  rules  established 
for  the  guidance  and  protection  of  all. 

As  a  matter  of  fact  the  public  has  no  right  to  com- 
plain, since  the  result  has  been  full  of  prosperity  and  wealth 
to  the  State,  but  that  is  not  material  in  passing  upon  the 
legal  rights  of  the  parties. 


But  it  is  urged  by  those  who  affirm  the  validity  of  the 
legislation,  that  tne  company  can  only  charge  reasonable 
rates,  and  that  this  act  is  merely  to  fix  such  rates  and  pun- 
ish the  taking  in  excess  thereof. 

We  deny  that  the  corporation  can  be  held,  either  by 
statute  or  at  common  law,  for  taking  an  unreasonable  rate. 

If  it  be  conceded  that  at  common  law,  one  exercising 
the  business  of  a  common  carrier  was  liable  for  charging 
unreasonably,  yet  we  say  that  the  rule  cannot  operate  upon 
this  corporation.  But  what  was  the  rule? 

It  is  stated  thus  by  Chancellor  Kent,  Vol.  2,  side 
p.  599. 

"As  they  (common  carriers)  hold  themselves  to  the 
world  as  common  carriers  for  a  reasonable  compensation, 
they  assume  to  do  what  is  required  of  them  in  the  course 
of  their  employment,  if  they  have  the  requisite  convenience, 
to  carry,  and  are  ottered  a  reasonable  or  customary  price, 


57 

and    if  they    refuse    without  some  just  ground,  they  are 
liable." 

This  assumes  an  implied  or  supposed  holding  out  to 
world  that  they  will  carry  for  reasonable  or  customary  com- 
pensation, upon  \vhich  assumption  one  wishing  their  ser- 
vces  or  acting  with  reference  to  them  (as  for  instance  en- 
gaging to  deliver  goods  at  a  given  point  on  the  carrier's 
route)  would  have  a  right  to  rely;  and  the  liability  of  the 
carrier  rests  mainly  upon  the  ground  that  he  has  disap- 
pointed the  just  and  reasonable  expectation  of  the  patron, 
(who,  but  for  this  expectation  would  presumably  have 
taken  a  different  action)  rather  than  upon  any  supposed 
miscorduct  in  asking  too  much.  It  will  be  noticed,  also, 
that  he  might  demand  (and  must  accept  if  offered)  a  cus- 
tomary price,  whether  moderate  or  not 

Now,  is  such  an  assumption  to  be  implied  of  a  corpo- 
ration acting  under  a  charter  which  gives  it  the  absolute 
power  "to  establish  such  rates  of  toll  for  the  conveyance 
of  persons  and  property  as  they  (directors)  shall  from  time 
to  time  by  their  by-laws  direct  and  determine,  and  to  levy 
and  collect  the  same  tor  the  use  of  said  company?" 

We  submit  that  this  would  rather  be  the  form  of  the 
undertaking  :  THAT  IT  WOULD  CARRY  FOR  ALL,  TO  THE  EX- 
TENT OF  ITS  CAPACITY.  AT  CERTAIN  RATES  ESTABLISHED  BY 
THE  BY-LAWS,  AND  USUALLY  MADE  PUBLIC  IN  THE  FORM  OF 
PRINTED  SCHEDULES. 

So  we  say,  whatever  might  be  the  rule,  if  the  charter  • 
were  silent  upon  the  point,  yet  as  it  contains  this  provision 
the  defendant  is  not  simply  authorized  to  carry — the  right 
to  receive  a  reasonable  and  customary  compensation  being 
implied — but  it  is  also  authorized  "to  levy  arid  collect"  for 


58 

its  services  such  rates  as  the  directors  "shall  from  time   to 
time,  by  their  by-laws,  direct  and  determine." 

If  it  be  said  that  these  rates  must  be  reasonable  or 
customary,  we  answer:  It  is  not  so  provided.  If  such  a 
condition  is  impliedly  attached,  then  this  provision  is  abso- 
lutely without  value.  It  has  no  significance.  The  charter 
would  have  been  the  same  if  this  clause  had  been  omitted, 
for  the  right  to  demand  reasonable  or  customary  compen- 
sation would  have  been  implied  if  nothing  had  been  said. 
.  We  distinctly  affirm  that  it  is  a  lair  construction  of 
the  language  to  say  that  the  charge  may  be  high  or  low, 
reasonable  or  unreasonable,  so  long  as  it  is  fixed  by  the 
by-laws;  and  the  only  way  of  correcting  the  fancied  evil, 
is  by  the  natural  remedy,  flowing  from  the  conditions  of 
trade,  demand  and  supply,  as  affected  by  the  sharp  competi- 
tion already  giown  up  in  the  immense  carrying  business  of 
the  State.  The  keen  instincts  of  self  interest  may  be  safely 
depended  upon  to  furnish  the  needed  relief,  and  it  will  be 
found  that  unreasonable  rates  will  not  long  be  maintained, 
because  self  destructive. 


But  if  it  be  conceded  that  the  rates  must  be  reasonable,  that  this 
is  an  implied  condition,  limited  upon  the  express  pmcer  to  charge,  what 
follows? 

Can  the  Legislature  judicially  find  and  ascertain  what  is  rea- 
sonable? It  cannot,  for  this  is  an  invasion  of  another  department 
of  governmental  function. 


59 

If  we  are  answered  that  by  this  act  the  Legislature  do 
not  judicially  find  and  fix  the  rate,  but  only  provide  a  mode 
by  which  a  PUIMA  FACIE  rate  can  be  ascertained,  and  that 
the  act  then  merely  affixes  a  punishment  for  taking  in 
excess  of  this  rate,  we  reply  by  again  quoting  from  the  New 
Bedford  Bridge  case : 

"The  Commonwealth  has  no  more  power  or  authority 
"to  construe  the  charter  than  has  the  corporation.  By  be- 
"coining  a  party  to  a  contract  with  its  citizens,  the  govern- 
"ment  divests  itself  of  sovereignty  wit/,  respect  to  the  terms 
"and  conditions  of  the  contract,  its  construction  and  inter- 
pretation, and  stands  in  the  same  position  as  a  private 
"individual. 

"If  it  were  otherwise,  then  the  rights  of  parties  con- 
tracting with  the  Government  would  be  at  the  caprice 
"of  the  sovereign,  and  exposed  to  all  the  risks  arising 
"from  the  corrupt  or  ill-judged  use  of  misguided  power. 
"The  interpretation  and  construction  of  contracts  drawn 
"in  question  between  the  parties,  belongs  exclusively  to 
"the  judicial  branch  of  the  Government." 

In  State  vs.  Noyes.  47  Maine,  204,  the  Court  say: 
"The  right  was  conferred  so  that  the  directors  of  the 
"company  should  prescribe  rule*  and  regulations  ac- 
"cording  to  their  own  judment,  without  any  interference 
"of  the  Legislature,  unless  the  company  should  in  some 
"way  abuse  the  privileges  granted;  and  in  determining 
"whether  they  had  been  so  abused,  the  power  to  judge 
"is  not  left  with  the  department  of  the  Government 
"which  conferred  the  privileges,  but  according  to  the 


"act  of  incorporation  itself,  as  before  stated,  by  due  pro- 
"cess  of  law,  though  the  Legislature  might  provide,  by 
"general  legislation,  lines  and  penalties  for  abuses,  and 
I'modes  in  which  they  might  be  imposed;  but  whether 
'•abuses  of  the  privileges  granted  had  taken  place  in 
"given  cases,  is  exclusively  with  another  department  of 
•'the  Government  to  find.  New  Bedford  Bridge  case,  2 
"Gray,  339.  The  company  being  thus  secured  in  its  in- 
dependence of  the  Legislature,  and  having  the  right, 
"by  its  directors,  to  establish  a  toll,  for  the  sole  benefit 
"of  the  corporation,  upon  all  passengers  and  property  of 
'all  descriptions  which  might  be  conveyed  or  transported 
"by  them  on  the  road,  it  was  induced  to  construct  the 
"road  and  put  it  in  operation  as  the  consideration  of  the 
"grant  in  the  charter. 

"The  act  of  the  Legislature  thus  became  a  contract 
"between  the  Government,  acting  in  its  sovereign  ca- 
pacity, with  the  company,  formed  on  the  mutual  con- 
siderations, moving  from  one  party  to  the  other.  This 
"contract  is  to  be  construed  by  the  tribunal  established 
"for  such  purposes  generally,  on  the  same  principles 
"which  are  to  be  contracts  between  private  individuals, 
"and  in  both  classes  the  great  question  presented  is, 
"what  was  the  intention  of  the  parties  if  And  the  an- 
"swer  to  this  question,  and  the  construction  to  be  given 
"to  all  such  contracts  generally,  is  the  appropriate  and 
"exclusive  business  of  the  judicial  department." 

Now,  we  ask  if  the  Legislature  cannot  judicially  find 
what  is  reasonable,  if  this  is  strictly  a  judicial  function, 


if  the  Legislature  cannot  give  a  construction  to  the  con- 
tract, how  is  it  possible  for  the  Legislature  to  pass  a  law 
by  which  it  shall  say  to  the  judiciary,  "Consider  THIS  a 
"reasonable  rate,  treat  it,  as  prima  facie,  the  maximum  of 
''reasonable  charges,  and  unless  this  rate  is,  by  the 
"•weight  of  the  evidence,  shown  not  be  reasonable,  fix 
"the  liability  of  the  corporation"?  If  the  contract  is  be- 
yond the  power  of  the  Legislature  to  construe,  it  must 
be  so  in  to  to,  and  surely  it  is  not  admissible  for  the  Leg- 
islature to  gjve  it  a  prima  facie  construction — a  construc- 
tion sub  modo,  throwing  the  burden  of  proof  upon  the 
company  to  overcome  a  prima  facie  case  made  by  their 
own  arbitrary  decree. 

The  company  have  the  right  to  fix  rates  in  the  first 
instance.  These  rates  must  be  reasonable,  (it  is  as- 
sumed) and  it  is  highly  penal  to  make  them  excessive. 
The  presumption  of  course  is,  that  the  company  per- 
forms its  duty  properly  and  fairly,  and  the  burden  of 
proof  would  be  upon  the  iState,  to  show  the  contrary. 

Now,  the  State  having  no  power  to  construe  the 
contract,  having  no  right  to  judicially  find  in  the  prem- 
ises, arbitrarily  fixes  a  rate,  and  makes  out  its  own  case, 
in  the  first  instance,  by  declaring,  in  its  own  favor  and 
interest,  that  the  rate  so  fixed  is  the  maximum  of  rea- 
sonable charges.  There  is,  in  principle,  no  difference 

V 

between  this  and  an  absolute  finding — a  conclusive  ad- 
justment. 

The  difference  is  in  degree  only,  not  at  all  in  princi- 


62 

pie,  and  either  act  would  be  obnoxious  to  the  same  ob- 
jection. 

It'  the  Legislature  can  say  what  shall  be  a  prima  facie 
case,  it  can  say  that  a  certain  modicum  of  proof  should 
be  required  to  overcome  such  prima  facie  case.  In  a  word, 
the  allowance  of  such  a  power  would  be  (to  quote  from 
the  case  of  State  vs.  Noyes,  47  Me.)  ua  new  and  easy 
umode  by  which  this  constitutional  security  of  private 
"property  and  privileges  may  be  broken  down." 

All  reasoning  upon  this  point  must  necessarily  re- 
sult thus.  The  Legislature,  in  the  charter,  gave  the 
company  the  right  to  fix  the  rates.  This  right  was  given 
absolutely  and  without  conditions,  and  any  subsequent 
legislative  act  affecting  this  power,  either  by  directly 
fixing  a  conclusive  rate,  or  indirectly  by  making  a.  prima 
facie  standard,  does  impair  the  contract,  for  it  is  not 
necessary  that  the  contract  shall  be  wholly  abrogated. 
It  is  not  to  be  IMPAIRED  in  any  substantial  degree. 

Here  is  a  clear  case  of  the  taking  of  property  with- 
out due  process  of  law.  It  is  necessary,  according  to  the 
due  process  of  law.  that  before  condemnation,  there 
shall  be  a  hearing,  and  that  judgment  shall  rest  upon 
proof,  the  party  affected  having  due  notice  and  opportu- 
nity of  defense. 

But  here  there  is  no  notice:  no  evidence;  only  a 
judgment. 

And,  worse  than  all,  this  judgment  is  rendered  by  a 
department  of  the  Government  to  which  all  judicial 
power  has  been  expressly  denied  by  the  Constitution, 


We  quote  from  the  American  Law  Register,  Vol.  14,  p;ige  392 
the  following  syllabus  of  the  case  of  Francis  vs.  Baker,  n  R.  I. 
The  Report  is  not  within  our  reach : 

A  statute  provided  for  the  appointment  of  auditors  in  certain  cases 
of  assumpsit,  debt,  etc.,  involving  the  settlement  of  accounts,  and 
for  a  trial  by  jury  on  demand,  after  the  confirmation  of  the  Report 
of  the  Auditors;  and  that  upon  such  trial  the  ,  report  should  be 
prima  facie  evidence  of  all  matters  embraced  in  the  order.  Held 
that  this  statute  was  void  so  far  as  it  made  the  report  prima  facie 
evidence  for  the  jury,  it  being  in  conflict  with  the  provisions  of  the 
State  Constitution,  which  declared  that  the  right  of  trial  by  jury 
should  be  inviolate. 


63 

and  by  a  party  to  a  contract,  the  terms  whereof,  present 
the  substantial  issue  in  the  case. 


It  is  sometimes  urged  by  those  who  support  this 
legislation,  that  because  the  State  has  exercised  the 
p(Twer  of  eminent  domain  in  opening  a  right  of  way  for 
this  railroad,  therefore  it  has  retained,  by  implication, 
the  right  to  contradict  and  set  aside  the  clause  above 
quoted,  and  regulate  the  rates. 

This  is  znonsequUur.     No  such  right  was  reserved. 
The  supposition  of  such  a  reservation  is  at  war  with  ex 
press   and  positive   language   of  the   grant.     There   is 
nothing  ambiguous,   no  doubtful  clause,  no  room  for 
construction. 

The  power  to  condemn  was  given  in  express  terms, 
and  without  the  supposed  condition. 

It  might  have  been  a  proper  subject  of  considera- 
tion;  it  doubtless  was,   when   the   charter  was   given, 
whether  this  power  should  be  asserted  for  the  purpose 
in  view.    The  question  was  then  solved  in  the  affirma- 
tive, and  no  doubt  wisely.    Without  it,  the  necessary 
right  of  wav  was  perhaps  not  attainable,  for  one  obst 
nate  freeholder,  or  one  tract  owned  by  persons  incapa- 
ble of  consent,  might  have  prevented  the  opening  < 
this  great  thoroughfare  for  years,  perhaps  for  all  time. 


64 

producing  incalculable  injury  to  the  material  interests 
of  the  whole  community. 

As  a  matter  of  fact,  it  does  not  appear  from  the 
record  that  the  power  was  ever  brought  into  exercise, 
and  so  far  as  the  record  shows,  it  never  was.  In  truth, 
the  company^  tracks  were  laid  in  part  over  its  own  lands, 
and  in  part  over  lands  J,where,  by  purchase  or  donation, 
the  right  of  way  was  procured  without  resort  to  the  pro- 
cess of  condemation. 

If  it  be  said  that  the  exercise  ol  this  right  of  eminent 
domain  is  only  justifiable  because  of  a  great  public  need, 
and  that  this  need  renders  public  the  use  to  which  the  road 
is  applied,  nothing  is  added  to  the  position,  for  the  State 
did  not  guarantee  that  it  would  furnish  transportation  at 
given  rates,  or  at  reasonable  rates,  nor  that  the  corpora- 
tion should  do  so,  nor  is  the  public  use  of  a  species  of 
property,  evidence  of  the  public  ownership  of  the  property. 
The  use  of  a  hotel,  or  a  newspaper,  is  public,  though  the 
property  is  private.  Many  occupations  are  public  in  the 
same  sense,  yet  the  persons  pursuing  them  have  never 
been  called  upon  to  regulate  their  charges  by  a  legislative 
scale. 

In  the  People,  tfec.  vs  State,  20th  Michigan,  478. 

Cooley  «J.  says  of  railroads: 

"I  have  said  that  railroads  are  often  spoken  of  as  a 
"species  of  highway.  They  are  such  in  the  sense  that  they 
"accommodate  the  public  travel,  and  that  they  are  regu- 
lated by  law  with  a  view  to  preclude  partiality  in  their 
•  'accommodations. 

"But  their  resemblance  to  the  highways  which  belong 


65 

"to  the  public,  which  the  people  make  and  keep  in  repair, 
"and  which  are  open  to  the  whole  public  to  be  used  at  will 
'  'and  with  such  means  of  locomotion  as  taste  or  pleasure  or 
•'convenience  may  dictate,  is  rather  fanciful  than  otherwise, 
"and  has  been  made  prominent,  perhaps,  from  the  necessity 
"of  resorting  to  the  right  of  eminent  domain  for  their  estab- 
lishment, than  for  any  other  reason. 

"They  are  not,  when  in  private  hands,  the  people's 
"highways;  but  they  are  private  property,  whose  owners 
"make  it  their  business  to  transport  persons  and  merchan- 
dise in  their  own  carriages,  over  their  own  land,  for  such 
"pecuniary  compensation  as  may  be  stipulated.  These 
"owners  carry  on,  for  their  own  benefit,  a  business  which 
"has  indeed  its  public  aspect,  inasmuch  as  it  accommodates 
"a  public  want;  and  its  establishment  is  consequently,  in  a 
"certain  sense,  a  public  purpose. 

"But  it  is  not  such  a  purpose* in  any  other  or  different 
"sense  than  would  be  the  opening  of  a  hotel,  the  estab- 
lishment of  a  line  of  stages,  or  the  putting  in  operation  of 
"a  grist  mill;  each  of  which  may,  under  proper  circum- 
stances, be  regarded  as  a  local  necessity,  in  which  the 
"local  public  may  take  an  interest  beyond  what  they  would 
"feel  in  other  objects  for  which  the  right  to  impose  taxa- 
tion would  be  unquestionable. 

"The  business  of  railroading,  in  private  hands,  is  not 
"to  be  distinguished  in  its  legal  characteristics  from  either 
"of  the  other  kinds  of  business  here  named,  or  from  many 
"others  which  might  be  mentioned." 

The  small  part  of  a  roadway  that  may  be  obtained  by 
condemnation  is  so  insignificant  compared  with  the 
amounts  expended  in  the  construction  and  equipment  of 


the  whole  property,  that  it  would  seem  grossly  unreason- 
ahle  to  suppose  that  because  this  small  item,  bought  and 
paid  for  at  its  appraised  value,  under  valid  legal  proceed- 
ings, was  procured  through  the  exercise  of  a  public  power, 
therefore  the  ownership  of  the  whole  property  is  public, 
and  subject  to  the  risks  of  its  judged  or  misjudged  public 
regulations. 

The  ownership  of  the  property  must  be,  and  necessa- 
rily is,  private.  Because  the  State  has  donated  to  a  rail- 
road company  a  piece  of  land  in  aid  of  the  construction  of 
the  road,  does  it  follow  that  the  public  may  ever  after  in- 
terfere in  the  use  of  that  laud?  The  assets  of  the  company 
become  the  private  property  of  the  stockholders,  bought 
and  paid  for  with  their  own  money,  and  they  may  fairly 
object  to  any  process  that  would  either  take  their  property 
from  them  at  once,  or  by  diminishing  its  producing  power, 
lender  it  without  value. 

If  the  power  of  earning  money  in  sufficient  amounts 
to  pay  dividends  be  taken  away,  then  the  property  is 
practically  worthless;  and  though  it  may  happen  that  a 
small  or  an  important  element  in  the  estate  was  derived 
from  the  exercise  of  a  public  function  of  the  sovereign 
enabling  the  company  to  acquire  a  right  of  way  as  a  last 
resort,  yet  this  was  not  done  without  compensation;  be- 
fore the  condemnation  could  be  made  effectual,  the  price 
must  be  paid — not  by  the  State,  but  by  the  company  out 
of  its  private  funds.  Nor  was  there  any  peculiar  sanctity 
impressed  upon  the  property  so  acquired.  And  thus  it 
appears  that  the  most  important  consideration  in  the  case 
of  eminent  domain  is  the  necessity  of  accomplishing  some 


67 

public  good  which  is  not  otherwise  practicable,  and  the 
law  does  not  so  much  regard  the  means  as  the  need.  Yet 
those  whose  money  pays  the  damages,  would  be  unwill- 
ing to  make  the  investment,  and  would  never  do  it  if 
they  were  warned  in  advance  that  this  peculiar  feature 
of  a  small  part  of  the  property  would  give  cast  and  color 
to  the  whole,  and  by  the  forms  of  a  legal  fiction,  ren- 
der public  and  worthless  what  was  before  private  and 
profitable. 

Trusting  that  we  have  not  unduly  taxed  the  patience 
of  the  Court  in  the  discussion  of  a  question  already 
threadbare  by  reason  of  its  prominence  in  the  popular 
controversies  of  the  day,  in  the  press,  and  at  the  bar,  but 
of  infinite  importance  because  of  the  interests  involved 
and  the  momentous  consequences  attending  its  decision, 
we  beg  to  repeat- 
Any  act  impairing  the  obligation  of  a  contract  is 
void. 

This  charter  is  a  contract. 
This  act  impairs  its  obligation. 
This  act  is  void. 


GEO.  TRUMBULL, 
GEO.  W.  WALL, 

Attorneys  for  Appellant. 


Kfl 


